| Perez v Vasquez |
| 2010 NY Slip Op 02065 [71 AD3d 531] |
| March 18, 2010 |
| Appellate Division, First Department |
| Victor Perez, Respondent, v Pedro A. Vasquez et al.,Appellants. |
—[*1] Jay S. Hausman & Associates, P.C., Hartsdale (Elizabeth M. Pendzick of counsel), forrespondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered October 29, 2009,which denied defendants' motion for summary judgment dismissing the complaint, unanimouslymodified, on the law, to dismiss the 90/180-day claim, and otherwise affirmed, without costs.
Defendants satisfied their initial burden on summary judgment by establishing, prima facie,with the submission of medical reports from their experts, that plaintiff did not suffer a seriousinjury within the meaning of Insurance Law § 5102 (d). Defendants also established,prima facie, that plaintiff had no 90/180-day claim by submitting excerpts of plaintiff'sdeposition testimony indicating that, during the 180 days immediately following the accident, hewas confined to home and bed for only three weeks (see Guadalupe v Blondie Limo, Inc., 43 AD3d 669, 670 [2007]).
In opposition, plaintiff raised a triable issue of fact as to whether he suffered a significant orpermanent consequential limitation of use his right knee. In the near aftermath of the accident,plaintiff commenced receiving physical therapy three to four times a week on his right knee andwas prescribed a brace for support. Three months after the accident, Dr. McMahon found thatplaintiff's knee was unstable and causing him pain. Dr. McMahon explained that his findingswere consistent with the MRI findings of a torn meniscus. Based on the forgoing, Dr. McMahonperformed arthroscopic surgery on plaintiff's right knee, during which he saw the tear of themedial meniscus and determined that it was irreparable. In his most recent examination ofplaintiff, he found a 15-degree limitation in the range of motion of plaintiff's right knee. Dr.McMahon gave a sufficient qualitative assessment of the limitation in plaintiff's right knee byexplaining that the surgery permanently altered the load distribution of the knee, lessening itsability to sustain the load of walking, running or other daily activities (see Toure v Avis RentA Car Sys., 98 NY2d 345, 353 [2002]).
Plaintiff, however, failed to raise a triable issue of fact as to his 90/180-day claim. Plaintiff'ssubjective claims of pain are insufficient to raise a triable issue of fact (see Guadalupe,43 AD3d at 670), and the record is devoid of any evidence showing that plaintiff was preventedfrom performing substantially all of the material acts constituting his usual andcustomary daily [*2]activities (see Gibbs v Hee Hong, 63 AD3d559, 560 [2009]).
Any injury in the nature of a permanent scar was not identified in the bill of particulars andneed not be addressed by this Court (seeLopez v Abdul-Wahab, 67 AD3d 598, 599 [2009]). In any event, there is no medicalevidence as to the severity of the scars or any photographs for this Court to evaluate (see Aguilar v Hicks, 9 AD3d 318,319 [2004]).
Plaintiff adequately explained the gap in treatment by asserting in his affidavit that hestopped receiving treatment for his injuries in April 2007 when his no-fault insurance benefitswere cut off, and that he did not have private health insurance at that time (see Wadford v Gruz, 35 AD3d258, 259 [2006]). Concur—Mazzarelli, J.P., Saxe, Nardelli, Abdus-Salaam andRomÁn, JJ.