| Jno-Baptiste v Buckley |
| 2011 NY Slip Op 02057 [82 AD3d 578] |
| March 22, 2011 |
| Appellate Division, First Department |
| Decima Jno-Baptiste, Respondent, v Paul J. Buckley,Appellant. |
—[*1] Douglas & London, P.C., New York (Nicholas E. Warywoda of counsel), forrespondent.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered July 15, 2010, whichdenied defendant's motion for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, and the motion granted. The Clerk is directed to enterjudgment dismissing the complaint.
Defendant's submissions, including the affirmed report of an orthopedist and the transcript ofplaintiff's deposition, met his prima facie burden of showing that plaintiff had not suffered aserious injury within the meaning of Insurance Law § 5102 (d). In opposition, plaintifffailed to raise a triable issue with respect to whether she suffered a permanent consequential orsignificant limitation. The MRI report merely shows findings "suggestive of transient patellardislocation." However, a dislocation alone, without evidence of some permanent or significantlimitation, does not constitute a serious injury (see Licygiewicz v Stearns, 61 AD3d 1254 [2009]).
The assertion of plaintiff's physiatrist that plaintiff suffered from an 18% loss of flexion inher right knee, conflicts with the affidavit of her physical therapist, indicating that, 18 monthsearlier, plaintiff had full range of motion in her right knee, and had reached maximum medicalbenefit from physical therapy. The physiatrist makes no attempt to explain the conflictingfindings, and defendant is thus entitled to summary judgment on this basis (see Pou v E&S Wholesale Meats, Inc.,68 AD3d 446, 447 [2009]).
The record also shows that plaintiff missed only one month of work after the accident.Although she claimed that she was unable to perform her usual and customary activities for morethan 90 of the 180 days following the accident, without any substantiating medical [*2]documentation, plaintiff's testimony alone does not suffice to showa serious injury under the 90/180-day category of Insurance Law § 5102 (d) (seeNelson v Distant, 308 AD2d 338, 340 [2003]). Concur—Tom, J.P., Andrias, Sweeny,Moskowitz and Renwick, JJ.