| McLoud v Reyes |
| 2011 NY Slip Op 01810 [82 AD3d 848] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Supreme K. McLoud et al., Respondents, v Rafael A.Reyes, Appellant. |
—[*1] Lozner & Mastropietro (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J.Isaac], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (Kramer, J.), dated October 19, 2009, which deniedhis motion for summary judgment dismissing the complaint on the ground that the plaintiffSupreme K. McLoud did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), and denied his separate motion for summary judgment dismissing thecomplaint on the ground that he was not negligent in causing the subject accident.
Ordered that the order is reversed, on the law, with costs, the defendant's motion forsummary judgment dismissing the complaint on the ground that the plaintiff Supreme K.McLoud did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) isgranted, and the defendant's separate motion for summary judgment dismissing the complaint onthe ground that he was not negligent in causing the subject accident is denied as academic.
The defendant met his prima facie burden of showing that the plaintiff Supreme K. McLouddid not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a resultof 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 plaintiffs failed to raise a triable issue of fact. The medical recordssubmitted by the plaintiffs from Medical Care 4 You, P.C., were not in admissible form sincethey were uncertified (see Rush v KwanChiu, 79 AD3d 1004 [2010]; Lozusko v Miller, 72 AD3d 908 [2010]; Mejia v DeRose, 35 AD3d 407,408 [2006]). The certification of Dr. Jadwiga H. Pawlowski was insufficient to affirm thecontents of the medical report of Dr. Robert F. Dickerson, which was annexed to it (seeCPLR 2106; see also Buntin vRene, 71 AD3d 938 [2010]; Washington v Mendoza, 57 AD3d 972, 973 [2008]; Matter of Bronstein-Becher v Becher,25 AD3d 796, 797 [2006]).
The affirmed medical reports of Dr. Dale Alexander and Dr. Lester Nadel submitted by theplaintiffs revealed that on September 17, 2007, and January 10, 2008, respectively, McLoud hadfull range of motion in his right knee.
The affirmed medical reports submitted by the plaintiffs of Dr. Benjamin Cortijo, one ofMcLoud's treating physicians, failed to raise a triable issue of fact because he failed to explain orreconcile the apparent inconsistencies in his own findings (see Vasquez v John Doe #1, 73 AD3d 1033 [2010]; Carrillo [*2]v DiPaola, 56 AD3d 712 [2008]; Felix v Wildred, 54 AD3d 891[2008]; O'Shea v Johnson, 49 AD3d614 [2008]; Magarin v Kropf,24 AD3d 733 [2005]), or those findings of McLoud's other treating physicians (see Resek v Morreale, 74 AD3d1043 [2010]). In any event, the approximate 12% limitation in range of motion noted by Dr.Cortijo on his July 13, 2009, examination of McLoud was insignificant within the meaning of theno-fault statute (see Licari v Elliott, 57 NY2d 230, 236 [1982]; Trotter v Hart,285 AD2d 772, 773 [2001]; Decker v Stang, 243 AD2d 1033, 1037 [1997]; Waldmanv Dong Kook Chang, 175 AD2d 204 [1991]; cf. Mazo v Wolofsky, 9 AD3d 452 [2004]).
The affirmation of Dr. Steven Brownstein submitted by the plaintiffs with his annexedmagnetic resonance imaging report concerning McLoud's right knee, also failed to raise a triableissue of fact. Those submissions merely revealed a tear of the posterior horn of both menisci inthe right knee. The mere existence of torn menisci is not evidence of a serious injury in theabsence of objective evidence of the extent of the alleged physical limitations resulting from theinjury and its duration (see Resek vMorreale, 74 AD3d 1043 [2010]; Larson v Delgado, 71 AD3d 739, 740 [2010]; Ciancio v Nolan, 65 AD3d 1273,1274 [2009]; Niles v Lam Pakie Ho,61 AD3d 657, 659 [2009]; Cornelius v Cintas Corp., 50 AD3d 1085, 1087 [2008]). Suchevidence was clearly lacking in this case.
The plaintiffs failed to submit any competent medical evidence that McLoud was unable toperform substantially all of his daily activities for not less than 90 of the first 180 days followingthe subject accident (see Sainte-Aime v Ho, 274 AD2d 569, 570 [2000]).
Since the plaintiffs failed to raise a triable issue of fact on the threshold issue of seriousinjury, the Supreme Court should have denied, as academic, the defendant's separate motion forsummary judgment dismissing the complaint on the ground that he was not negligent in causingthe subject accident (see Zawaski vSalzano, 77 AD3d 823, 824 [2010]). Angiolillo, J.P., Chambers, Austin and Miller, JJ.,concur.