Rodriguez v. Grant
| Decision Date | 02 March 2010 |
| Citation | 2010 N.Y. Slip Op. 01780,896 N.Y.S.2d 143,71 A.D.3d 659 |
| Parties | Efrain RODRIGUEZ, appellant,v.April L. GRANT, respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Cannon & Acosta, LLP, Huntington, N.Y. (June Redeker of counsel), for appellant.McAndrew, Conboy & Prisco (Bryan Cave, LLP [Daniel P. Waxman and Carolyn B. Ricón], of counsel), for respondent.MARK C. DILLON, J.P., HOWARD MILLER, RUTH C. BALKIN, JOHN M. LEVENTHAL, and LEONARD B. AUSTIN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), dated January 27, 2009, 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.
The defendants met their prima facie burden of showing that the plaintiff 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, 350–351, 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 plaintiff failed to raise a triable issue of fact.
The affirmed medical reports of the plaintiff's treating physicians Dr. Dov J. Berkowitz and Dr. Joseph Gregorace failed to address the findings of the defendant's radiologist, who concluded that the plaintiff's left knee injuries were degenerative in nature and unrelated to the subject accident. Thus, any conclusions of the plaintiff's experts that the injuries and limitations noted during their respective examinations were the result of the subject accident were speculative ( see Nicholson v. Allen, 62 A.D.3d 766, 879 N.Y.S.2d 164; Ferebee v. Sheika, 58 A.D.3d 675, 676, 873 N.Y.S.2d 93; Johnson v. Berger, 56 A.D.3d 725, 867 N.Y.S.2d 919; Ciordia v. Luchian, 54 A.D.3d 708, 864 N.Y.S.2d 74; Cornelius v. Cintas Corp., 50 A.D.3d 1085, 1086–1087, 857 N.Y.S.2d 637; Marrache v. Akron Taxi Corp., 50 A.D.3d 973, 974, 856 N.Y.S.2d 239; Giraldo v. Mandanici, 24 A.D.3d 419, 420, 805 N.Y.S.2d 124).
The affirmed magnetic resonance imaging report of Dr. Raymond Rizzuti merely revealed the existence of a tear of the anterior cruciate ligament and medial meniscus in the plaintiff's left knee. A tear in tendons, as well as a tear in a ligament, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration ( see Ciancio v. Nolan, 65 A.D.3d 1273, 885 N.Y.S.2d 767; Cornelius v. Cintas Corp., 50 A.D.3d at 1087, 857 N.Y.S.2d 637; see also Su Gil Yun v. Barber, 63 A.D.3d 1140, 883 N.Y.S.2d 242). The plaintiff failed to submit...
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