CARDWOOD v. “John Doe”, Defendant. (2024)

Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered March 24, 2023, which granted defendant R & F Limousine Inc.’s motion for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendant established prima facie entitlement to summary judgment through the sworn report of its radiologist who opined that the MRI of plaintiff's left knee taken shortly after the accident showed degenerative conditions and no traumatic injuries (see Sooknanan v. Pinales, 215 A.D.3d 608, 608, 187 N.Y.S.3d 629 [1st Dept. 2023]).  Defendant also submitted an affirmed expert report establishing that plaintiff had normal range of motion and normal objective tests when examined by defendant's orthopedist, indicating that plaintiff's alleged injuries had resolved (see Hall v. Uber Tech., Inc., 221 A.D.3d 503, 198 N.Y.S.3d 360 [1st Dept. 2023]), and the left knee had the same range of motion as the uninjured right knee (see Blumenberg v. Lora, 193 A.D.3d 445, 445, 146 N.Y.S.3d 107 [1st Dept. 2021]).

In opposition, plaintiff failed to raise an issue of fact.  The unaffirmed operative report of plaintiff's orthopedic surgeon was inadmissible as it was not relied on by defendant's expert (see Sooknanan v. Pinales, 215 A.D.3d at 609, 187 N.Y.S.3d 629).  Even were the operative report to be considered, plaintiff's orthopedic surgeon did not provide any opinion as to causation, nor did he explain how degenerative conditions, to the extent observed, were ruled out as a cause of the alleged injuries (see Baez v. Rahamatali, 6 N.Y.3d 868, 817 N.Y.S.2d 204, 850 N.E.2d 19 [2006]).  The report of plaintiff's orthopedist, among other things, was based on the unsworn reports and unproduced records of another physician, and, therefore, was incompetent to create an issue of fact (see Cabrera v. Apple Provisions, Inc., 151 A.D.3d 594, 595–596, 57 N.Y.S.3d 471 [1st Dept. 2017]).

We have considered plaintiff's remaining arguments and find them unavailing.