Il Chung Lim v. Chrabaszcz

• Citation: 95 A.D.3d 950,2012 N.Y. Slip Op. 03600,944 N.Y.S.2d 236
• Parties: IL CHUNG LIM, appellant, v. Michal K. CHRABASZCZ, respondent.
• Decision Date: 08 May 2012
• Court: New York Supreme Court Appellate Division

95 A.D.3d 950
944 N.Y.S.2d 236
2012 N.Y. Slip Op. 03600

IL CHUNG LIM, appellant,
v.
Michal K. CHRABASZCZ, respondent.

Supreme Court, Appellate Division, Second Department, New York.

May 8, 2012.

Sim & Park, LLP, New York, N.Y. (Marc Andrew Williams of counsel), for appellant.

Richard T. Lau, Jericho, N.Y. (Linda Meisler of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.

[95 A.D.3d 950]In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Siegal, J.), entered April 5, 2011, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

Although the plaintiff alleged that he sustained certain [95 A.D.3d 951]injuries to his left knee as a result of the subject accident, the defendant submitted competent medical evidence establishing, prima facie, that those alleged injuries did not constitute a serious injury within the meaning of Insurance Law § 5102(d) and, in any event, were not caused by the subject accident but, instead, were degenerative in nature ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Torres v. Posy, 92 A.D.3d 676, 937 N.Y.S.2d 887;Jilani v. Palmer, 83 A.D.3d 786, 920 N.Y.S.2d 424;Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180).

In opposition, the plaintiff failed to raise a triable issue of fact. The approximate 13% limitation in range of motion of the left knee noted by the plaintiff's treating physician, Dr. Benjamin Chang, on his most recent examination of the plaintiff on December 3, 2010, was insignificant within the meaning of the no-fault statute ( see McLoud v. Reyes, 82 A.D.3d 848, 849, 919 N.Y.S.2d 32). In any event, the plaintiff's submissions were insufficient to raise a triable issue of fact to rebut the finding of

[944 N.Y.S.2d 237]

the defendant's radiologist that the injuries depicted in the magnetic resonance imaging (hereinafter MRI) films of his left knee were degenerative in nature and unrelated to the subject accident. Neither the plaintiff's radiologist nor Dr. Chang addressed the findings of the defendant's radiologist pertaining to the degenerative nature of the plaintiff's left knee injuries, and Dr. Chang's conclusion that, based upon a review of the...