| Pines v Lopez |
| 2011 NY Slip Op 07296 [88 AD3d 545] |
| October 18, 2011 |
| Appellate Division, First Department |
| Mark Richard Pines, Respondent, v Ricardo A. Lopez,Appellant. |
—[*1] Richard J. Katz, LLP, New York (Jonathan A. Rapport of counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered September 28, 2010,which, to the extent appealed from as limited by the briefs, denied defendant's motion forsummary judgment dismissing plaintiff's claims for the permanent consequential limitation andsignificant limitation categories of serious injury within the meaning of Insurance Law §5102 (d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk isdirected to enter judgment dismissing the complaint in its entirety.
Defendant established prima facie entitlement to judgment as a matter of law on plaintiff'sclaims of permanent and significant limitations. Defendants submitted, inter alia, the affirmedreports of an expert orthopedist, who, after reviewing plaintiff's medical records and examininghim, found no limitations in the range of motion of plaintiff's knees and opined that plaintiff'sinjuries were the result of severe degenerative arthritis in both knees.
In opposition, plaintiff did not raise a triable issue of fact. He failed to present admissibleevidence of contemporaneous range of motion limitations following the accident (see Batts v Medical Express AmbulanceCorp., 49 AD3d 294 [2008]). The medical records of plaintiff's orthopedic surgeon alsodocumented that plaintiff previously had been diagnosed with degenerative arthritis in his kneesand that the eventual need for a total knee replacement had been anticipated for several yearsprior to the subject accident. Furthermore, plaintiff's medical expert failed to address two prioraccidents in which plaintiff had injured his knees, or to "address how plaintiff's current medicalproblems, in light of [his] past medical history, are causally related to the subject accident" (Style v Joseph, 32 AD3d 212, 214[2006]; see Zhijian Yang v Alston,73 AD3d 562, 563 [2010]). Concur—Saxe, J.P., Friedman, Moskowitz, Freedman andRichter, JJ.