| Soho v Konate |
| 2011 NY Slip Op 05177 [85 AD3d 522] |
| June 16, 2011 |
| Appellate Division, First Department |
| Marie Therese Soho, Appellant, v Ibrahima Konate et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Mary Brigantti-Hughes, J.), entered July 28, 2009,which granted defendant's motion for summary judgment dismissing the complaint on the groundthat plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
On February 4, 2006, plaintiff, then 75 years old, fell as she attempted to enter a taxi drivenby defendant Konate. Konate exited the car in an effort to help plaintiff. However, he hadmistakenly left the taxi in drive and it subsequently moved forward and struck plaintiff in the leg.Plaintiff commenced this action against defendants alleging that she sustained serious injuries.
Defendants established their prima facie entitlement to judgment as a matter of law bysubmitting, inter alia, the affirmation of an orthopedic surgeon who concluded that based upon anexamination of plaintiff and a review of her medical records, plaintiff was not seriously orpermanently injured and that her right knee and right shoulder complaints were not causallyrelated to the accident, but were the results of her weight and preexisting degenerative conditionsconsistent with her age (see Franchini vPalmieri, 1 NY3d 536 [2003]; Kerr v Klinger, 71 AD3d 593 [2010]). Thus, the orthopedist'sopinion regarding causation was neither conclusory nor unsupported and was sufficient toestablish defendants' prima facie case (see Lopez v American United Transp., Inc., 66 AD3d 407 [2009];compare Frias v James, 69 AD3d466 [2010]).
In opposition, plaintiff failed to raise a triable issue of fact. While plaintiff's medical recordsthat were relied upon by defendants were properly before the court, plaintiff may not rely uponthe unaffirmed medical report of the physician who examined her three years after the accident(see Bent v Jackson, 15 AD3d46, 48 [2005]), and her remaining evidence failed to rebut defendant's prima facie showing.Indeed, plaintiff failed to provide objective evidence of contemporaneous limitations to her rightknee and right shoulder as a result of the accident (see Jean v Kabaya, 63 AD3d 509 [2009]; Valentin v Pomilla, 59 AD3d 184,185 [2009]), a prerequisite to establishing serious injury even where the plaintiff has undergonesurgery (Jean, [*2]63 AD3d at 510). Even though Dr.Nelson noted limitations to plaintiff's knee and shoulder 10 days after the accident, the doctor'sreport is deficient because it does not compare the findings to the standards for normal ranges ofmotion (Zhijian Yang v Alston, 73AD3d 562 [2010]). Further, Dr. Bishow's operative report is not contemporaneous becausehe did not examine plaintiff until five months after the accident (see Cabrera v Gilpin, 72 AD3d552 [2010]; Toulson v Young HanPae, 13 AD3d 317 [2004]). Plaintiff's physicians also failed to address the existence ofpreexisting degenerative conditions as the cause of plaintiff's symptoms and failed to explainhow the alleged serious injuries of plaintiff's right shoulder and right knee might not have beenrelated to her age or weight (see Lopez, 66 AD3d at 407). Further, plaintiff's physiciansfailed to address the fact that merely because plaintiff had surgery for a meniscal tear does notestablish that the injury was caused by the accident (see Ortiz v Ash Leasing, Inc., 63 AD3d 556, 557-558 [2009]).Concur—Sweeny, J.P., Catterson, Moskowitz, Renwick and Richter, JJ.