Winters v. Cruz

• Decision Date: 01 December 2011
• Citation: 933 N.Y.S.2d 551,90 A.D.3d 412,2011 N.Y. Slip Op. 08671
• Parties: Walter WINTERS, et al., Plaintiff–Respondent, v. Ramon L. CRUZ, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08671

90 A.D.3d 412

933 N.Y.S.2d 551

Walter WINTERS, et al., Plaintiff–Respondent,

v.Ramon L. CRUZ, et al., Defendants–Appellants.

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

Dec. 1, 2011.

Mead, Hecht, Conklin & Gallagher, LLP, White Plains (Elizabeth M. Hecht of counsel), for appellants.

Morton J. Sealove, New York, for respondent.

Order, Supreme Court, Bronx County (Lizbeth González, J.), entered May 27, 2011, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint in its entirety, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Defendants established their entitlement to judgment as a matter of law by showing that the injury to plaintiff's right knee was not serious within the meaning of Insurance Law § 5102(d). Defendants submitted, inter alia, affirmed reports from a radiologist and an orthopedist, showing a healed right knee contusion and a preexisting condition of degenerative arthritis, which diagnosis was previously documented in the medical records of plaintiff's orthopedic surgeon ( see Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590–591, 920 N.Y.S.2d 24 [2011] ). Plaintiff had surgery on his left knee weeks before the accident, and received a steroid injection to the right knee at the same time.

In opposition, plaintiff raised a triable issue of fact with his expert's affirmation stating that the trauma of the automobile accident, and not the degeneration, caused his knee injury ( see Torain v. Bah, 78 A.D.3d 588, 913 N.Y.S.2d 27 [2010] ). However, he failed to set forth any contemporaneous or recent limitations sustained as a result of that trauma ( see generally Thompson v. Abbasi, 15 A.D.3d 95, 97–98, 788 N.Y.S.2d 48 [2005] ). The limitations the expert did note relative to plaintiff's knee were not compared with the standards for normal ranges of motion, and thus, his report was deficient ( see Soho v. Konate, 85 A.D.3d 522, 523, 925 N.Y.S.2d 456 [2011] ). Moreover, during a post-surgery examination, the expert found improved range of motion, and no evidence is submitted of current quantitative or qualitative restriction.

The record further demonstrates that there are no triable issues with respect to plaintiff's 90/180–day claim. The orthopedist's statement that plaintiff was “totally...