Mitchell v. Calle

• Decision Date: 27 December 2011
• Citation: 936 N.Y.S.2d 23,2011 N.Y. Slip Op. 09540,90 A.D.3d 584
• Parties: Donata MITCHELL, Plaintiff–Respondent, v. Juan C. CALLE, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09540

90 A.D.3d 584

936 N.Y.S.2d 23

Donata MITCHELL, Plaintiff–Respondent,

v.Juan C. CALLE, et al., Defendants–Appellants.

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

Dec. 27, 2011.

White Fleischner & Fino, LLP, New York (Jennifer L. Coviello of counsel), for appellants.

Ephrem J. Wertenteil, New York, for respondent.

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RENWICK, FREEDMAN, JJ.

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered January 25, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss the 90/180–day claim, and otherwise affirmed, without costs.

Defendants concede that plaintiff has a meniscal tear in her left knee, and their radiologist's report is too equivocal to make a prima facie showing that the tear was not caused by the accident ( see Glynn v. Hopkins, 55 A.D.3d 498, 498, 867 N.Y.S.2d 391 [2008] ), especially given plaintiff's relatively young age at the time of the accident ( see June v. Akhtar, 62 A.D.3d 427, 428, 878 N.Y.S.2d 59 [2009] ). However, defendants made a prima facie showing that plaintiff did not sustain a “permanent consequential limitation of use” of the knee within the meaning of Insurance Law § 5102(d) by submitting the affirmed reports of medical experts who opined that she had normal range of motion in the knee and that any symptoms had fully resolved ( see Dembele v. Cambisaca, 59 A.D.3d 352, 352, 874 N.Y.S.2d 72 [2009]; Gibbs v. Hee Hong, 63 A.D.3d 559, 559, 881 N.Y.S.2d 415 [2009] ). The affirmed reports are competent evidence, notwithstanding that the experts relied on the uncertified emergency room records and other unsworn medical records ( see Pommells v. Perez, 4 N.Y.3d 566, 577 n. 5, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).

In response, plaintiff submitted the affirmed reports of her treating physiatrist and the orthopedic surgeon who performed her knee surgery, who both found persisting limitations in range of motion of the left knee with discomfort, and described the qualitative nature of plaintiff's limitations based on the normal function, purpose, and use of the knee. In addition, plaintiff submitted an unsworn MRI report of the left knee stating that there was a small effusion suggesting a meniscal tear. Plaintiff's evidence raised an issue of fact as to whether she sustained a permanent consequential limitation of use of the knee ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002]; Salman v. Rosario, 87 A.D.3d 482, 928 N.Y.S.2d 531 [2011] ). Although the MRI report is unsworn, plaintiff could rely on it since defendants submitted it in support of their motion ( Lazarus v. Perez, 73 A.D.3d 528, 528, 901 N.Y.S.2d 39 [2010] ). Plaintiff also adequately explained the gap in treatment by testifying that she stopped treatment because her no-fault benefits terminated ( see Wadford v. Gruz, 35...