| Zambrana v Timothy |
| 2012 NY Slip Op 03381 [95 AD3d 422] |
| May 1, 2012 |
| Appellate Division, First Department |
| Ludwign H. Zambrana, Appellant, v Robert J. Timothy etal., Respondents. |
—[*1] Adams, Hanson, Finder, Hughes, Rego, Kaplan & Fishbein, Yonkers (Jeffrey A. Domoto ofcounsel), for respondents.
Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered September 21, 2011,which granted defendants' motion for summary judgment dismissing the complaint allegingserious injuries under the "permanent consequential limitation of use," "significant limitation ofuse" and 90/180-day categories of Insurance Law § 5102 (d), unanimously affirmed,without costs.
On January 9, 2008, then 26-year-old plaintiff was driving on the Van Wyck Expresswaywhen a vehicle owned by defendant Clifford C. Hay, Inc. and driven by defendant Timothy J.Robert collided with his car. Plaintiff commenced this action alleging that he sustained seriousinjuries to his right knee.
Defendants established prima facie absence of a serious injury by submitting the report of anorthopedist who examined plaintiff on November 18, 2010, and found full range of motion, andabsence of disability, permanency, or residuals (see De La Cruz v Hernandez, 84 AD3d 652, 652 [2011]).
Notwithstanding plaintiff's arguments that his medical records contain objective evidence ofinjuries, that he had adequately explained his cessation of treatment, and that he need not submitcontemporaneous quantitative evidence of limitations to sustain his claims, he failed to raise atriable issue of fact as to existence of a permanent serious injury since he did not submit anyobjective evidence of limitations based on a recent examination of his knee (see Perl v Meher, 18 NY3d 208,219-220 [2011]; Harrigan vKemmaj, 85 AD3d 559 [2011]; Thompson v Abbasi, 15 AD3d 95, 97-98 [2005]). The most currentmedical evidence upon which plaintiff relies is the operative report dated October 18, 2008,which was prepared more than two years before defendants' expert's findings of full range ofmotion and resolved symptoms.
Defendants met their burden of proof as to plaintiffs' 90/180-day claim by relying onplaintiff's medical records, and his deposition testimony, which are insufficient to establish thathe was unable to perform substantially all of the material acts which constitute his usual andcustomary daily activities during the requisite period (see Uddin v Cooper, 32 AD3d 270, 271 [2006], lv denied 8NY3d [*2]808 [2007]).
Plaintiff failed to raise an issue of fact. The medical records upon which he relies indicatethat, as of February 7, 2008, he was only "temporarily partially disabled" and, if he wereworking, would have been able to return to work with light duty restrictions (see Perl, 18NY3d at 220; Williams v Perez, 92AD3d 528 [2012]). Without any corroborating objective medical evidence, his affidavit,which simply repeats that he was curtailed from job hunting and confined to home during therequisite period, is insufficient to sustain a 90/180-day claim (see Rosa-Diaz v Maria Auto Corp., 79 AD3d 463 [2010]; Blake v Portexit Corp., 69 AD3d426 [2010]). Concur—Mazzarelli, J.P., Acosta, Renwick and Richter, JJ.