| Winters v Cruz |
| 2011 NY Slip Op 08671 [90 AD3d 412] |
| Dcmbr 1, 2011 |
| Appellate Division, First Department |
| Walter Winters et al., Respondents, v Ramon L. Cruz et al.,Appellants. |
—[*1] Morton J. Sealove, New York, for respondents.
Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered May 27, 2011, which,to the extent appealed from as limited by the briefs, denied defendants' motion for summaryjudgment dismissing the complaint in its entirety, unanimously reversed, on the law, withoutcosts, and the motion granted. The Clerk is directed to enter judgment in favor of defendantsdismissing the complaint.
Defendants established their entitlement to judgment as a matter of law by showing that theinjury to plaintiff's right knee was not serious within the meaning of Insurance Law § 5102(d). Defendants submitted, inter alia, affirmed reports from a radiologist and an orthopedist,showing a healed right knee contusion and a preexisting condition of degenerative arthritis,which diagnosis was previously documented in the medical records of plaintiff's orthopedicsurgeon (see Spencer v Golden Eagle,Inc., 82 AD3d 589, 590-591 [2011]). Plaintiff had surgery on his left knee weeks beforethe accident, and received a steroid injection to the right knee at the same time.
In opposition, plaintiff raised a triable issue of fact with his expert's affirmation stating thatthe trauma of the automobile accident, and not the degeneration, caused his knee injury (see Torain v Bah, 78 AD3d 588[2010]). However, he failed to set forth any contemporaneous or recent limitations sustained as aresult of that trauma (see generallyThompson v Abbasi, 15 AD3d 95, 97-98 [2005]). The limitations the expert did noterelative to plaintiff's knee were not compared with the standards for normal ranges of motion,and thus, his report was deficient (seeSoho v Konate, 85 AD3d 522, 523 [2011]). Moreover, during a post-surgeryexamination, the expert found improved range of motion, and no evidence is submitted of currentquantitative or qualitative restriction.
The record further demonstrates that there are no triable issues with respect to plaintiff's90/180-day claim. The orthopedist's statement that plaintiff was "totally disabled" was toogeneral to raise an issue of fact (seeMorris v Ilya Cab Corp., 61 AD3d 434 [2009]). [*2]Furthermore, plaintiff's statement that he missed approximately fourmonths of work was not supported by any documentation or affidavit from his employer (see Dembele v Cambisaca, 59 AD3d352 [2009]). Concur—Tom, J.P., Andrias, Catterson, Abdus-Salaam andRomÁn, JJ.