| Mitchell v Calle |
| 2011 NY Slip Op 09540 [90 AD3d 584] |
| Dcmbr 27, 2011 |
| Appellate Division, First Department |
| Donata Mitchell, Respondent, v Juan C. Calle et al.,Appellants. |
—[*1] Ephrem J. Wertenteil, New York, for respondent.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered January 25, 2011, whichdenied defendants' motion for summary judgment dismissing the complaint, unanimouslymodified, on the law, to dismiss the 90/180-day claim, and otherwise affirmed, without costs.
Defendants concede that plaintiff has a meniscal tear in her left knee, and their radiologist'sreport is too equivocal to make a prima facie showing that the tear was not caused by the accident(see Glynn v Hopkins, 55 AD3d498, 498 [2008]), especially given plaintiff's relatively young age at the time of the accident(see June v Akhtar, 62 AD3d427, 428 [2009]). However, defendants made a prima facie showing that plaintiff did notsustain a "permanent consequential limitation of use" of the knee within the meaning ofInsurance Law § 5102 (d) by submitting the affirmed reports of medical experts whoopined that she had normal range of motion in the knee and that any symptoms had fully resolved(see Dembele v Cambisaca, 59AD3d 352, 352 [2009]; Gibbs vHee Hong, 63 AD3d 559, 559 [2009]). The affirmed reports are competent evidence,notwithstanding that the experts relied on the uncertified emergency room records and otherunsworn medical records (see Pommellsv Perez, 4 NY3d 566, 577 n 5 [2005]).
In response, plaintiff submitted the affirmed reports of her treating physiatrist and theorthopedic surgeon who performed her knee surgery, who both found persisting limitations inrange of motion of the left knee with discomfort, and described the qualitative nature ofplaintiff's limitations based on the normal function, purpose, and use of the knee. In addition,plaintiff submitted an unsworn MRI report of the left knee stating that there was a small effusionsuggesting a meniscal tear. Plaintiff's evidence raised an issue of fact as to whether she sustaineda permanent consequential limitation of use of the knee (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Salmanv Rosario, 87 AD3d 482 [2011]). Although the MRI report is unsworn, plaintiff couldrely on it since defendants submitted it in support of their motion (Lazarus v Perez, 73 AD3d 528,528 [2010]). Plaintiff also adequately explained the gap in treatment by testifying that shestopped treatment because her no-fault benefits terminated (see Wadford v Gruz, 35 AD3d 258, 259 [2006]).
The court, however, should have dismissed the 90/180-day claim. Defendants made a primafacie showing that plaintiff did not suffer a 90/180-day injury, and plaintiff failed to raise atriable issue of fact. Indeed, plaintiff testified that, after the accident, she was confined to bed for[*2]only three days and to home for a only week (seeSalman, 87 AD3d at 484). Further, the claimed restrictions in her usual and customaryactivities are unsupported by objective medical evidence (see Nelson v Distant, 308AD2d 338, 340 [2003]).
We have considered defendants' remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and Freedman, JJ.