Mcloud v. Reyes

• Decision Date: 08 March 2011
• Parties: Supreme K. McLOUD, etc., et al., respondents,v.Rafael A. REYES, appellant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 848

919 N.Y.S.2d 32

2011 N.Y. Slip Op. 01810

Supreme K. McLOUD, etc., et al., respondents,

v.Rafael A. REYES, appellant.

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

March 8, 2011.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellant.Lozner & Mastropietro (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac], of counsel), for respondents.DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated October 19, 2009, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff Supreme K. McLoud did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied his separate motion for summary judgment dismissing the complaint on the ground that he was not negligent in causing the subject accident.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Supreme K. McLoud did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted, and the defendant's separate motion for summary judgment dismissing the complaint on the ground that he was not negligent in causing the subject accident is denied as academic.

The defendant met his prima facie burden of showing that the plaintiff Supreme K. McLoud did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

In opposition, the plaintiffs failed to raise a triable issue of fact. The medical records submitted by the plaintiffs from Medical Care 4 You, P.C., were not in admissible form since they were uncertified ( see Rush v. Kwan Chiu, 79 A.D.3d 1004, 914 N.Y.S.2d 234; Lozusko v. Miller, 72 A.D.3d 908, 899 N.Y.S.2d 358; Mejia v. DeRose, 35 A.D.3d 407, 408, 825 N.Y.S.2d 722). The certification of Dr. Jadwiga H. Pawlowski was insufficient to affirm the contents of the medical report of Dr. Robert F. Dickerson, which was annexed to it ( see CPLR 2106; see also Buntin v. Rene, 71 A.D.3d 938, 896 N.Y.S.2d 894; Washington v. Mendoza, 57 A.D.3d 972, 973, 871 N.Y.S.2d 336; Matter of Bronstein–Becher v. Becher, 25 A.D.3d 796, 797, 809 N.Y.S.2d 140).

The affirmed medical reports of Dr. Dale Alexander and Dr. Lester Nadel submitted by the plaintiffs revealed that on September 17, 2007, and January 10, 2008, respectively, McLoud had full range of motion in his right knee.

The affirmed medical reports submitted by the plaintiffs of Dr. Benjamin Cortijo, one of McLoud's treating physicians, failed to raise a triable issue of fact because he failed to explain or reconcile the apparent inconsistencies in his own findings ( see Vasquez v. John Doe # 1, 73 A.D.3d 1033, 905 N.Y.S.2d 188; Carrillo v. DiPaola, 56 A.D.3d 712, 869 N.Y.S.2d 135; Felix v. Wildred, 54 A.D.3d 891, 863 N.Y.S.2d 832; O'Shea v. Johnson, 49 A.D.3d 614, 853 N.Y.S.2d 608; Magarin v. Kropf, 24 A.D.3d 733, 807 N.Y.S.2d 398), or those findings of McLoud's other treating physicians ( see Resek v. Morreale, 74 A.D.3d 1043, 903 N.Y.S.2d 120). In any event, the approximate 12% limitation in range of motion noted by Dr. Cortijo on his July 13, 2009, examination of McLoud was insignificant within the meaning of the no-fault statute ( see Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088; Trotter v. Hart, 285 A.D.2d 772, 773, 728 N.Y.S.2d 561; Decker v. Stang, 243 A.D.2d 1033, 1037, 663 N.Y.S.2d 448; Waldman v. Dong Kook Chang, 175 A.D.2d 204, 572 N.Y.S.2d 79; cf. Mazo v. Wolofsky, 9 A.D.3d 452, 779 N.Y.S.2d 921).

The affirmation of Dr. Steven Brownstein submitted by the plaintiffs with his annexed magnetic resonance imaging report concerning McLoud's right knee, also failed to raise a triable issue of fact. Those submissions merely revealed a tear of the posterior horn of both menisci in the right knee. The mere existence of torn menisci is not evidence of a...