CILLO v. SCHIOPPO (1998)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered May 9, 1997, which granted defendants' motions for summary judgment dismissing the complaint for failure to make a prima facie showing of serious injury within the meaning of Insurance Law § 5102(d), and order, same court and Justice, entered on or about July 15, 1997, which denied plaintiff's motion to renew, unanimously affirmed, without costs.

 Defendants' motions were properly predicated upon medical reports prepared by plaintiff's treating physicians, which, contrary to her bill of particulars, do not show that she sustained a fracture or a permanent or significant loss of use of a body function or system, and upon her deposition testimony, in which plaintiff asserted that she was unable to return to work for eight months after the accident but admitted that the only medically determined injury or impairment of which she was aware was soft tissue injury to her ankle (see, Lowe v. Bennett, 122 A.D.2d 728, 729, 511 N.Y.S.2d 603, affd. 69 N.Y.2d 700, 512 N.Y.S.2d 364, 504 N.E.2d 691;  Deangelo v. Marcia Serv. Corp., 199 A.D.2d 58, 605 N.Y.S.2d 31).   The unsworn letter of plaintiff's orthopedist, dated almost two years prior to plaintiff's opposition to which it was attached, is not evidence competent to defeat a motion for summary judgment (see, Lowe v. Bennett, supra, at 730, 511 N.Y.S.2d 603;  cf., Rodriguez v. Goldstein, 182 A.D.2d 396, 582 N.Y.S.2d 395).   In any event, the letter does not rebut defendants' showing, in that it opines, without mention of any diagnostic tests or even detailed observations, that plaintiff was “totally disabled” (compare, Bitici v. New York City Tr. Auth., 245 A.D.2d 157, 666 N.Y.S.2d 188, with Velez v. Cohan, 203 A.D.2d 156, 610 N.Y.S.2d 257).   Plaintiff's motion to renew, on which she submitted the updated, sworn affidavit of her orthopedist, stating that plaintiff's “continued complaints over a long period of time and consistent physical examination findings are consistent with medical miniscule tear of the left knee, the extent of which will be better delineated after her surgical intervention”, was properly denied for lack of an acceptable excuse why a statement such as this was not submitted on the original motion (see, Huttner v. McDaid, 151 A.D.2d 547, 543 N.Y.S.2d 916;  Mgrditchian v. Donato, 141 A.D.2d 513, 529 N.Y.S.2d 134).   We would also note that the report continues to admit negative diagnostic tests, and, while stating that plaintiff did not have surgery earlier because she was afraid, does not explain what appears to be a two-year gap in plaintiff's treatment.

MEMORANDUM DECISION.