| Bamundo v Fiero |
| 2011 NY Slip Op 07386 [88 AD3d 831] |
| October 18, 2011 |
| Appellate Division, Second Department |
| John Bamundo, Appellant, v Donald Fiero et al.,Respondents. |
—[*1] Richard T. Lau, Jericho, N.Y. (Kathleen E. Fioretti of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Spinner, J.), dated December 16, 2010, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants met their prima facie burden of establishing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). The defendants made a prima facie showing, throughthe affirmed report of their examining orthopedist, that the injuries the plaintiff allegedlysustained to his left knee did not constitute a serious injury under the permanent consequentiallimitation of use and/or the significant limitation of use categories of Insurance Law §5102 (d) (see Dunbar v Prahovo Taxi,Inc., 84 AD3d 862, 863 [2011]; Staff v Yshua, 59 AD3d 614 [2009]). The defendants alsodemonstrated, prima facie, that the plaintiff did not sustain a serious injury under the 90/180 daycategory of Insurance Law § 5102 (d) by submitting the plaintiff's deposition testimony,which revealed that he missed only seven days of work in the first 180 days following the subjectaccident (see Lewars v Transit FacilityMgt. Corp., 84 AD3d 1176, 1178 [2011]).
In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff'ssubmissions indicated that he sustained a torn meniscus in his left knee, evidence of a tornmeniscus is insufficient to raise a triable issue of fact under the permanent consequentiallimitation of use and the significant limitation of use categories of Insurance Law § 5102(d) absent objective proof of the extent and duration of the alleged physical limitations resultingfrom the injury (see Dunbar v Prahovo Taxi, Inc., 84 AD3d at 863; McLoud v Reyes, 82 AD3d 848,849 [2011]; Simanovskiy v Barbaro,72 AD3d 930, 932 [2010]). Further, in view of the plaintiff's deposition testimony that hemissed only seven days of work as a result of the subject accident, he failed to raise a triableissue of fact under the 90/180 day category of Insurance Law § 5102 (d) (see Lewars vTransit Facility Mgt. [*2]Corp., 84 AD3d at 1178).Accordingly, the Supreme Court properly granted the defendants' motion for summary judgmentdismissing the complaint. Rivera, J.P., Florio, Eng, Hall and Cohen, JJ., concur.