| Rush v Kwan Chiu |
| 2010 NY Slip Op 09495 [79 AD3d 1004] |
| December 21, 2010 |
| Appellate Division, Second Department |
| Derrick Rush, Appellant, v Kwan Chiu et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Kings County (Starkey, J.), dated September 10, 2009, which granted the defendants'motion for summary judgment dismissing the complaint on the ground that he did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The Supreme Court correctly determined that the defendants met their prima facie burden ofshowing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed toraise a triable issue of fact.
On appeal, the plaintiff limits his claims of serious injury to his right knee. Initially, the medicalreports of Dr. Harvey S. Bishow, including those regarding examinations on August 5, 2004,September 8, 2004, October 13, 2004, and December 22, 2004, the operative report datedDecember 27, 2005, and Dr. Steven Shankman's magnetic resonance imaging report of the plaintiff'sright knee were all unaffirmed (see Grasso v Angerami, 79 NY2d 813 [1991]; Resek v Morreale, 74 AD3d 1043[2010]; Bleszcz v Hiscock, 69 AD3d890 [2010]; Singh v Mohamed, 54AD3d 933 [2008]; Verette v Zia,44 AD3d 747 [2007]; Nociforo vPenna, 42 AD3d 514 [2007]). Further, the Saint Vincent's Hospital medical records reliedupon by the plaintiff were uncertified (seeLozusko v Miller, 72 AD3d 908 [2010]; Mejia v DeRose, 35 AD3d 407 [2006]).
In addition, the medical report of Dr. David P. Abott, the plaintiff's treating chiropractor, and theaffirmed medical report of Dr. Mehran Manouel, did not address the plaintiff's right knee, the onlyinjury at issue on appeal. Thus, they were insufficient to rebut the defendants' prima facie showing thatthe plaintiff did not sustain a serious injury to his right knee.
Moreover, the affirmed medical report of Dr. Manouel failed to raise a triable issue [*2]of fact as to whether the plaintiff sustained a serious injury to his rightknee under the permanent loss, the permanent consequential limitation of use, or the significant limitationof use categories of Insurance Law § 5102 (d), because the report failed to provide medicalevidence that was contemporaneous with the subject accident which showed initial range-of-motionlimitations in the plaintiff's right knee that were significant in nature (see Posa v Guerrero, 77 AD3d 898 [2010]; Srebnick v Quinn, 75 AD3d 637[2010]; Catalano v Kopmann, 73 AD3d963 [2010]; Bleszcz v Hiscock, 69AD3d 890 [2010]; Taylor vFlaherty, 65 AD3d 1328 [2009]; Fung v Uddin, 60 AD3d 992 [2009]; Gould v Ombrellino, 57 AD3d 608[2008]; Sorto v Morales, 55 AD3d718 [2008]; Kuchero vTabachnikov, 54 AD3d 729 [2008]; Ferraro v Ridge Car Serv., 49 AD3d 498 [2008]). Skelos, J.P.,Angiolillo, Hall and Roman, JJ., concur.