| Martinez v Goldmag Hacking Corp. |
| 2012 NY Slip Op 03952 [95 AD3d 682] |
| May 22, 2012 |
| Appellate Division, First Department |
| Sara Martinez, Respondent, v Goldmag Hacking Corp. etal., Appellants. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), forrespondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered August 12, 2011, whichdenied defendants' motion for summary judgment dismissing the complaint on the ground thatplaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d),unanimously modified, on the law, to grant the motion as to the "permanent consequentiallimitation of use" and "significant limitation of use" categories of serious injury, and otherwiseaffirmed, without costs.
Defendants established prima facie that plaintiff suffered neither a "permanent consequentiallimitation of use" nor a "significant limitation of use" of her left knee or lumbar spine. Theorthopedic surgeon who examined plaintiff in August 2010 reported findings of a full range ofmotion in her lumbar spine and a range of motion in her left knee that was identical to that of heruninjured right knee, and the finding of a mere contusion on the left knee that had since resolved.The radiologist who reviewed MRIs of plaintiff's lumbar spine and the X ray of plaintiff's lefttibia and fibula found no evidence of trauma or causally related injury (see e.g. Antonio v Gear Trans Corp.,65 AD3d 869 [2009]; Thompson vAbbasi, 15 AD3d 95 [2005]).
Plaintiff failed to present any evidence of a recent examination supporting the alleged"permanent consequential" or "significant limitation" injuries (see e.g. Shu Chi Lam v Wang Dong, 84AD3d 515 [2011]). Her treating orthopedic surgeon had not examined her since October2009, which was about one month after her surgery and nearly 10 months before defendants'orthopedic surgeon examined her, and did not quantify any limitations or opine as to qualitativelimitations at that time (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351[2002]).
Although defendants made out their prima facie case as to plaintiff's 90/180-day claim,plaintiff raised an issue of fact by submitting her orthopedic surgeon's determination, madeduring the relevant period, that she was not able to work, was totally disabled, and requiredarthroscopic surgery to repair her knee, and her testimony that she was confined to her home foreight months after the accident and had only recently resumed her customary daily activities (see e.g. Williams v Tatham, 92 AD3d472, 473 [2012]). We note that if plaintiff ultimately prevails on her 90/180-day claim, shewill be "entitled to recover damages that justly and fairly [*2]compensate[ ] . . . her for all injuriesproximately caused by the accident" (Rubin v SMS Taxi Corp., 71 AD3d 548, 549-550 [2010]; see Delgado v Papert Tr., Inc., 93AD3d 457 [2012]). Concur—Tom, J.P., Sweeny, Renwick, Freedman andAbdus-Salaam, JJ.