Arrowood v. Lowinger

• Decision Date: 30 May 2002
• Citation: 742 N.Y.S.2d 294,294 A.D.2d 315
• Court: New York Supreme Court — Appellate Division
• Parties: ROBERT ARROWOOD et al., Appellants,<BR>v.<BR>STEVEN E. LOWINGER et al., Respondents.

294 A.D.2d 315

742 N.Y.S.2d 294

ROBERT ARROWOOD et al., Appellants,

v.STEVEN E. LOWINGER et al., Respondents.

Decided May 30, 2002.

Concur — Buckley, J.P., Rosenberger, Lerner, Rubin and Marlow, JJ.

Defendants met their initial burden of establishing that plaintiff has not sustained a "serious injury" within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956; Licari v Elliott, 57 NY2d 230), and plaintiff's submissions failed to raise an issue of fact. The findings of two doctors, who examined plaintiff in September and October 2000, respectively, that plaintiff had "exquisite tenderness" of his left Achilles heel and "extreme sensitivity on the back of the left ankle" do not demonstrate a "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system" (Gaddy v Eyler, 79 NY2d, supra at 957; Licari v Elliott, 57 NY2d, supra at 236). Moreover, the findings were based on plaintiff's subjective complaints of pain are thus insufficient to raise a triable issue under Insurance Law § 5102 (d) (see, Toure v Avis Rent A Car Sys., 284 AD2d 271, 273; Charlton v Almaraz, 278 AD2d 145, 146). Notably, plaintiff did not seek treatment for over four years and returned to his employment within 11 weeks of the accident. In these circumstances, the doctors' conclusory assertions that plaintiff had suffered a permanent injury is insufficient to defeat defendants' entitlement to summary judgment (see, Toure, 284 AD2d, supra at 272; Bandoian v Bernstein, 254 AD2d 205). A finding that plaintiff suffered a "2-4% impairment of the whole person, a 5-10% of the lower limb and 7-14% impairment of the ankle" is not supported by any objective medical tests performed by the doctor and appears to be tailored to meet statutory requirements (see, Lopez v Senatore, 65 NY2d 1017, 1019; Castano v Synergy Gas Corp., 250 AD2d 640). In any event, the claimed limitations are not of sufficient magnitude to qualify as a "`significant' or `important' limitation of use" (Bandoian v Bernstein, supra at 205; Licari v Elliott, supra). An MRI report which allegedly showed a tendon rupture of plaintiff's right ankle was taken 3½ years after the accident and the injury was not shown to be causally related to the accident (see, Cacaccio v Martin, 235 AD2d 384). Notably, none of plaintiff's treating physicians diagnosed a ruptured tendon following the accident and the doctors who examined plaintiff in 2000 made no findings of injury to his right ankle. Plaintiff's affidavit, in which he claimed to have been unable to give golf lessons for three to five months following the...