| Colon v Vincent Plumbing & Mech. Co. |
| 2011 NY Slip Op 05181 [85 AD3d 541] |
| June 16, 2011 |
| Appellate Division, First Department |
| Inez Colon et al., Respondents, v Vincent Plumbing &Mechanical Co. et al., Defendants, and Vincio Almonte et al.,Appellants. |
—[*1] Sobel, Ross, Fliegel & Stieglitz, LLP, New York (Michael P. Stieglitz of counsel), forrespondents.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered July 14, 2010, whichdenied defendants Almonte's and Collado's motion for summary judgment dismissing thecomplaint on the threshold issue of serious injury under Insurance Law §§ 5102 and5104, unanimously reversed, on the law, without costs, and the motion granted. The Clerk isdirected to enter judgment in favor of said defendants dismissing the complaint as against them.
Defendants established prima facie their entitlement to judgment as a matter of law bysubmitting medical evidence that plaintiffs did not sustain serious injuries and that any injurieswere not caused by the accident.
Regarding plaintiff Colon, a radiologist found that an MRI of the left knee revealed noevidence of acute or recent injury and no evidence of traumatic tear or rupture of the regionalligaments, tendons or menisci. The radiologist found degenerative changes of the lateralmeniscus and patella. An MRI of the cervical spine revealed regional discogenic changesunrelated to the accident. A neurologist found some limited range of motion in the cervical spineand normal range of motion in the knee, and an orthopedist found normal range of motion in thecervical spine and knee.
In opposition, plaintiffs did not submit any medical evidence indicating that Colon's claimedcervical spine injury was causally related to the accident. Regarding the knee injury, while theorthopedic surgeon who performed arthroscopic surgery on Colon to repair a torn meniscussubmitted a report indicating that the injury was the result of the accident, that Colon had"limited range of motion" in the knee, and that she could fully extend the knee but flex waslimited to about 115/135 degrees, the surgeon "fail[ed] to identify or describe the objectivemedical tests employed in measuring the alleged restrictions in range of motion" (Lloyd v Green, 45 AD3d 373, 374[2007]; see also Gorden v Tibulcio,50 AD3d 460, 464 [2008]). "Nor did he explain the significance of his findings, or provide asufficient description of the qualitative [*2]nature of thelimitations based on the normal function and use of the knee" (Mickens v Khalid, 62 AD3d 597,597 [2009]). Thus, Colon failed to raise any issue of fact under the permanent consequentiallimitation and significant limitation categories of Insurance Law § 5102 (d).
Similarly, with respect to Puente, defendants met their initial burden by submitting the reportof a radiologist who opined that the MRI of Puente's lumbar spine revealed regional discogenicchanges representing longstanding wear-and-tear degenerative changes unrelated to the accidentand consistent with Puente's age (71 years). An MRI of the right knee showed no evidence ofacute or recent injury; it showed significant and advanced degenerative changes involving allthree joint compartments, menisci and anterior cruciate ligament, representing chronicwear-and-tear degenerative change unrelated to the accident. A neurologist found some limitedrange of motion in the cervical spine, "observed to be limited by volitional guarding." The motorexamination of the knee was normal. An orthopedic surgeon found normal ranges of motion inthe lumbar spine and right knee.
In opposition, Puente failed to present medical evidence sufficient to raise a triable issue. Histreating doctor did not identify any serious injury; his diagnoses included, as relevant here,possible L4-5 sciatica discogenic disease and SP lumbar strain (severe). The doctor did not makeany reference to the claimed injury to the right knee or address the fact that, as noted in thedoctor's report, Puente had complained of lower back pain eight months before the accident (see Pommells v Perez, 4 NY3d566, 580 [2005]; Montgomery vPena, 19 AD3d 288, 290 [2005]). Moreover, while his report indicated some limitationin back motion, the doctor failed to indicate the normal ranges of motion for the areas tested, anddid not provide an objective assessment of Puente's claimed range of motion limitations (see Gorden v Tibulcio, 50 AD3d460, 464 [2008], supra).
Regarding plaintiffs' 90/180-day claims, defendants appropriately relied on plaintiffs'deposition testimony (see Canelo vGenolg Tr., Inc., 82 AD3d 584 [2011]). Puente testified that he was not confined tohome or bed for more than a brief period of time, "negat[ing] his chance of establishing a90/180-day serious-injury claim under section 5102 (d)" (Lopez v Abdul-Wahab, 67 AD3d 598, 600 [2009]). As for Colon,the only evidence in the record on this issue is that she missed some days of work. Even if shehad missed 90 days of work, that would not be determinative (see Simpson v Montag, 81 AD3d547 [2011]). Her inconsistent testimony regarding how much time she was out of work as abeautician in her beauty salon,[FN*]coupled with [*3]the absence of any other evidence that she wasprevented from performing substantially all of her usual and customary daily activities for therequisite period, is insufficient to support her claim. Concur—Tom, J.P., Andrias,Friedman, Abdus-Salaam and RomÁn, JJ.
Footnote *: She testified that she lost abouttwo weeks from work right after the accident, explaining that it did not take her very long to getback, because that was her only source of income. She further testified that she lost about fourweeks from work after her surgery. However, she also testified at that same deposition that shewas confined to her home for about two weeks and then after that did not work for two months.