| Larson v Delgado |
| 2010 NY Slip Op 01931 [71 AD3d 739] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Elizabeth Larson, Appellant, v Jaime Delgado,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Schneier, J.), dated January 30, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
In this action to recover damages for personal injuries allegedly sustained in an automobileaccident, the defendant moved for summary judgment dismissing the complaint on the groundthat the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d). The Supreme Court granted the defendant's motion, finding, in effect, inter alia, thatafter the defendant established his prima facie entitlement to judgment as a matter of law, theplaintiff failed to raise a triable issue of fact because she did not present evidence ofrange-of-motion limitations contemporaneous with the accident. We affirm, albeit on a differentground.
The defendant met his prima facie burden of establishing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triableissue of fact.
The affirmed medical reports of the plaintiff's treating and examining physicians, Dr.Lyudmila Konon, Dr. Victor Katz, and Dr. Gary Starkman, failed to address the findings of thedefendant's radiologist, Dr. Robert Tantleff, who concluded that the injuries to the cervical andlumbar regions of the plaintiff's spine and the left knee were degenerative in nature and unrelatedto the subject accident. Thus, any conclusions of the plaintiff's physicians that the injuries andlimitations noted during their respective examinations were the result of the subject accidentwere speculative (see Nicholson vAllen, 62 AD3d 766 [2009]; Shmerkovich v Sitar Corp., 61 AD3d 843 [2009]; Johnson v Berger, 56 AD3d 725[2008]; Ciordia v Luchian, 54AD3d 708 [2008]).[*2]
Furthermore, the affirmed magnetic resonance imagingreports of Dr. Charles DeMarco and Dr. Charles Cooper merely revealed the existence of a tearof the medial meniscus in the plaintiff's left knee and various bulging discs in the cervical andlumbar regions of her spine. This Court has routinely held that a tear in tendons, as well as a tearin a ligament, or a bulging disc is not evidence of a serious injury in the absence of objectiveevidence of the extent of the alleged physical limitations resulting from the injury and itsduration (see Ciancio v Nolan, 65AD3d 1273 [2009]; Niles v LamPakie Ho, 61 AD3d 657 [2009]; Sealy v Riteway-1, Inc., 54 AD3d 1018 [2008]; Kilakos v Mascera, 53 AD3d 527[2008]; Cornelius v Cintas Corp.,50 AD3d 1085, 1087 [2008]). Here, the plaintiff failed to submit any such evidence inopposition to the defendant's motion. The affidavit of the plaintiff also was insufficient to meetthis standard (see Luizzi-Schwenk vSingh, 58 AD3d 811, 812 [2009]; Sealy v Riteway-1, Inc., 54 AD3d 1018 [2008]).
The plaintiff's remaining contention is without merit. Fisher, J.P., Santucci, Angiolillo andLott, JJ., concur.