| DeJesus v Cruz |
| 2010 NY Slip Op 04119 [73 AD3d 539] |
| May 13, 2010 |
| Appellate Division, First Department |
| Mildred DeJesus, Respondent, v Julio Cruz et al.,Appellants. |
—[*1] Litman & Litman, P.C., East Williston (Jeffrey E. Litman of counsel), forrespondent.
Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered December 7,2009, which, in an action for personal injuries sustained when plaintiff pedestrian was struck byan automobile driven by defendant Cruz and owned by defendant Marte, denied defendants'motion for summary judgment dismissing the complaint on the ground that plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d), unanimouslyreversed, on the law, without costs, and the motion granted. The Clerk is directed to enterjudgment in favor of defendants dismissing the complaint.
Defendants established their prima facie entitlement to summary judgment by submitting thereport of their expert orthopedist, who, after examining plaintiff and reviewing her records,found that plaintiff had normal range of motion in her left knee and that there was no findingsuggesting a traumatic injury due to the accident. The expert further opined that plaintiffdemonstrated normal range of motion in her cervical spine, and, with the exception of lateralmovement, normal range of motion in her lumbar spine. Moreover, defendants' expertneurologist reported that all of plaintiff's complaints regarding her left knee and spine were dueto preexisting, degenerative conditions unrelated to the accident (see Lopez v Abdul-Wahab, 67 AD3d598 [2009]).
In opposition, plaintiff proffered insufficient objective medical evidence contemporaneouswith the accident to reveal significant range of motion limitations in her knee or spine resultingfrom the accident (see Ali v Khan,50 AD3d 454 [2008]). This evidentiary requirement exists even where, as here, there hasbeen surgery on the knee (see Jean vKabaya, 63 AD3d 509, 510 [2009]). Furthermore, plaintiff's expert physician failed toaddress the findings of defendants' experts that plaintiff's knee and spinal conditions were due topreexisting, degenerative changes unrelated to any traumatic injury attributable to the accident(see Colon v Tavares, 60 AD3d419 [2009]).
The record also presents no triable issue of fact as to whether plaintiff sustained a "seriousinjury" under the 90/180-day prong of Insurance Law § 5102 (d). Plaintiff's claim thatfollowing the accident she was limited in her ability to perform her normal daily activities, is[*2]insufficient in the absence of objective medical evidence(see Nelson v Distant, 308 AD2d 338, 340 [2003]). Concur—Andrias, J.P.,Catterson, Renwick, Richter and RomÁn JJ.