| Sainnoval v Sallick |
| 2010 NY Slip Op 08553 [78 AD3d 922] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Yves Sainnoval, Respondent, v Harrinarine Sallick,Appellant. |
—[*1] Dinkes & Schwitzer, New York, N.Y. (Robert S. Summer of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Martin, J.), dated May 3, 2010, which denied his motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
Although we affirm the order appealed from, we do so on a ground not relied upon by theSupreme Court. Contrary to the defendant's contentions on appeal, he failed to meet his primafacie burden of showing that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Insupport of the defendant's motion, he relied upon, inter alia, the affirmed medical reports of Dr.Edward Weiland and Dr. Joseph Elfenbein. Both reports were fatal to the defendant meeting hisprima facie burden.
Dr. Weiland examined the plaintiff on February 18, 2009, and examined, inter alia, theplaintiff's right knee range of motion. In doing so, he noted the existence of limitations in theplaintiff's right knee flexion and extension the extent of which is unknown, since he failed tocompare those findings to what was normal (see Leopold v New York City Tr. Auth., 72 AD3d 906 [2010]; Gaccione v Krebs, 53 AD3d 524[2008]; Iles v Jonat, 35 AD3d537 [2006]; McCrary v Street,34 AD3d 768 [2006]; Whittaker vWebster Trucking Corp., 33 AD3d 613 [2006]; Yashayev v Rodriguez, 28 AD3d 651 [2006]). Absent suchcomparative quantification, we cannot conclude, as a matter of law, that the decreased range ofmotion is "minor, mild or slight" so as to be considered insignificant within the meaning of theno-fault statute (Licari v Elliott, 57 NY2d 230, 236 [1982]; Gaddy v Eyler, 79NY2d at 957).
As to Dr. Elfenbein, he examined the plaintiff on February 18, 2008. In his report, Dr.Elfenbein noted the existence of a significant limitation in the plaintiff's right knee range ofmotion (see Sirma v Beach, 59AD3d 611 [2009]; Newberger vHirsch, 49 AD3d 700 [2008]; Tchjevskaia v Chase, 15 AD3d [*2]389 [2005]).
Since the defendant failed to meet his prima facie burden, it is unnecessary to address thequestion of whether the papers submitted by the plaintiff in opposition were sufficient to raise atriable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Fisher, J.P.,Dillon, Balkin, Chambers and Sgroi, JJ., concur.