| Vasquez v Almanzar |
| 2013 NY Slip Op 04561 [107 AD3d 538] |
| June 18, 2013 |
| Appellate Division, First Department |
| Gwendolyn Vasquez et al.,Respondents, v Baldwin A. Almanzar et al., Appellants, et al.,Defendant. |
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Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered August 1, 2012,which denied the motion of defendants Baldwin A. Almanzar and NYLL Management,Ltd. for summary judgment dismissing the claims of plaintiff Gwendolyn Vasquez asagainst them on the ground that she did not suffer a serious injury within the meaning ofInsurance Law § 5102 (d), unanimously reversed, on the law, without costs, themotion granted, and, upon a search of the record, summary judgment granted todefendant Boamah. The Clerk is directed to enter judgment accordingly.
Defendants Almanzar and NYLL Management met their prima facie burden ofshowing that Vasquez did not suffer a serious injury. With respect to the alleged lumbarspine injury, defendants submitted, inter alia, the affirmed report of a radiologist whoopined that the MRI of Vasquez revealed no evidence of recent traumatic injury causallyrelated to the accident, and that the changes shown in the MRI were degenerative anddue to a preexisting condition (see Phillips v Tolnep Limo Inc., 99 AD3d 534 [1st Dept2012]; Williams v Horman,95 AD3d 650 [1st Dept 2012]).
In opposition, Vasquez failed to raise a triable issue. She submitted, inter alia, anunaffirmed MRI report, which included findings of "likely" degenerative changes in thelumbar spine, and her physicians failed to address those findings, thus supporting theconclusion that she had a preexisting condition (see Lazu v Harlem Group, Inc., 89 AD3d 435 [1st Dept2011]).
Regarding the alleged left knee injuries, defendants established their entitlement tojudgment as a matter of law by submitting the affirmed report of their orthopedist, whoexamined Vasquez and found full range of motion, no significant abnormalities, and apreexisting condition. In opposition, Vasquez failed to raise a triable issue of fact as tothe existence of a serious injury under the "permanent consequential limitation of use ofa body organ or member" category, as she did not submit objective evidence ofpermanent limitations based on a recent examination of her left knee (see Zambrana v Timothy, 95AD3d 422, 422 [1st Dept 2012]). Moreover, the medical reports submitted byVasquez showed that her surgeon found that she had full range of motion in her knee sixweeks after her surgery.[*2]
However, "a significant limitation [of use of abody function or system] need not be permanent in order to constitute a serious injury"(Estrella v GEICO Ins. Co.,102 AD3d 730, 731 [2d Dept 2013] [internal quotation marks omitted]; seePartlow v Meehan, 155 AD2d 647, 647 [2d Dept 1989]). Indeed, a " 'permanentconsequential limitation' requires a greater degree of proof than a 'significant limitation',as only the former requires proof of permanency" (Altman v Gassman, 202AD2d 265, 265 [1st Dept 1994]; see Oberly v Bangs Ambulance, 271 AD2d135, 137 [3d Dept 2000], affd on other grounds 96 NY2d 295 [2001])."Insurance Law § 5102 (d) does not expressly set forth any temporal requirement,"although assessment of the limitation's significance does require consideration of itsduration in addition to its extent and degree (see Estrella, 102 AD3d at 731-732;Griffiths v Munoz, 98AD3d 997, 998 [2d Dept 2012]; Partlow, 155 AD2d at 648; Jones vUnited States, 408 F Supp 2d 107, 120 [ED NY 2006]). Therefore, the lack of arecent examination, while sometimes relevant, is not dispositive by itself in determiningwhether a plaintiff has raised a triable issue of fact in opposing a defendant's prima facieevidence under the "significant limitation" category.
Our decision in Townes vHarlem Group, Inc. (82 AD3d 583, 583-584 [1st Dept 2011]) should not be readto require a plaintiff to submit a recent examination as a necessary prerequisite toovercoming judgment as a matter of law in every instance of a claim under the"significant limitation" category. To the extent that the Townes Court did requirea recent examination, it was due to the specific facts present in that case. Furthermore,the precedents that decision relied upon in requiring a recent examination do notspecifically address the degree of proof necessary for a "significant limitation" claim asopposed to a "permanent consequential limitation" claim, instead conflating these twocategories of serious injury (seeAntonio v Gear Trans Corp., 65 AD3d 869, 870 [1st Dept 2009] [determiningthat plaintiffs failed to raise a triable issue of fact on "a significant or permanentconsequential limitation"]; Thompson v Abbasi, 15 AD3d 95, 97 [1st Dept 2005][referring only to "serious injury"]).
Here, the reports submitted by Vasquez failed to refute the finding of defendants'expert that the condition identified in Vasquez's knee was preexisting and not causallyrelated to the accident. Therefore, Vasquez failed to raise a triable issue of fact undereither the "permanent consequential limitation" or "significant limitation" category.
Dismissal of the 90/180-day claim is warranted in light of Vasquez's bill ofparticulars wherein she alleged that she was confined to home for approximately oneweek following her left knee surgery and that she could not perform her household dutiesfor one week after the accident. She denied being confined to bed and made no claim forlost earnings since she was unemployed at the time of the accident (see Phillips,99 AD3d at 535; Mitrotti vElia, 91 AD3d 449, 450 [1st Dept 2012]). Vasquez's assertions that her ability todo everyday activities had been significantly limited was insufficient to raise a triableissue of fact without objective medical evidence to substantiate her claims (see Colon v Bernabe, 65 AD3d969, 970-971 [1st Dept 2009]).[*3]
Since Vasquez is unable to meet the seriousinjury threshold, dismissal of her claims as against nonmoving defendant Boamah is alsowarranted (see e.g. Britton vVilla Auto Corp., 89 AD3d 556 [1st Dept 2011]). Concur—Tom, J.P.,Acosta, Saxe, Freedman and Feinman, JJ.