Travis v Batchi

2010 NY Slip Op 05862 [75 AD3d 411]

July 1, 2010

Appellate Division, First Department

As corrected through Friday, January 20, 2012

Sheila Travis, Appellant, et al., Plaintiffs, v Nassirou M.Batchi et al., Respondents.

—[*1]Grant & Longworth, LLP, Bronx (Brett R. Hupart of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered April 9, 2009,which granted defendants' motion for summary judgment dismissing the complaint as toplaintiff-appellant (plaintiff) for lack of a serious injury, unanimously affirmed, without costs.

The examination records of plaintiff's own treating physician/expert show that she had fullstrength and range of motion in the knee both a few weeks and a few months after the accident,after he performed a right knee anterior cruciate ligament reconstruction, partial medial andlateral meniscectomy and chondroplasty. Absent some manner of explanation, the negativefindings cannot be reconciled with the physician's affirmation submitted in opposition to themotion prepared a few years after the accident, that plaintiff sustained a permanent injury to theknee as a result of the accident. Summary judgment in favor of defendants should be granted forthis reason alone, at least with respect to the alleged knee injury (see Pou v E&S Wholesale Meats, Inc.,68 AD3d 446 [2009]). Also fatal to plaintiff, on the issue of permanence of both the allegedknee and alleged back injuries, is the physician's failure to provide any objective medical testresults showing current range-of-motion impairments (cf. Jimenez v Rojas, 26 AD3d 256, 257 [2006]). Nor does plaintiff,who concedes that she worked from home beginning two months after the accident through herreturn to the office five months after the accident, and fails to detail the particular job and otheractivities that were supposedly curtailed, satisfy the 90/180-day test (see [*2]Uddin v Cooper, 32 AD3d 270, 271 [2006], lv denied8 NY3d 808 [2007]; Linton vNawaz, 62 AD3d 434, 443 [2009], affd on other grounds 14 NY3d 821 [2010]).Concur—Tom, J.P., Sweeny, Moskowitz, DeGrasse and Manzanet-Daniels, JJ.