ROSARIO v. GONZALEZ (2020)

Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered April 15, 2019, which, inter alia, granted defendants' motions for summary judgment dismissing the complaint due to plaintiff's inability to demonstrate that she sustained a serious injury to her right knee within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants satisfied their prima facie burden of showing that plaintiff did not sustain a serious injury to her right knee by submitting the report of their orthopaedic surgeon, who found that she had normal range of motion in her right knee (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 102 N.Y.S.3d 588 [1st Dept. 2019]; Mendoza v. L. Two Go, Inc., 171 A.D.3d 462, 96 N.Y.S.3d 576 [1st Dept. 2019]), and opined that plaintiff's emergency room records were inconsistent with her claimed right knee injury (see Streety v. Toure, 173 A.D.3d 462, 103 N.Y.S.3d 438 [1st Dept. 2019]).  Defendants also demonstrated that the claimed knee injury was not causally related to the accident by submitting the report of their radiologist, who found that the MRI of plaintiff's right knee showed degenerative conditions not related to the accident (see Rodriguez v. Konate, 161 A.D.3d 565, 76 N.Y.S.3d 553 [1st Dept. 2018]).  Defendants also submitted the operative report of plaintiff's orthopedic surgeon, which included findings of degenerative conditions and noted that plaintiff ceased treating about eight months after the accident.

In opposition, plaintiff failed to raise an issue of fact.  Although her orthopedic surgeon found recent limitations in range of motion of her right knee that could be considered significant (see Collazo v. Anderson, 103 A.D.3d 527, 528, 960 N.Y.S.2d 35 [1st Dept. 2013]), he provided only a conclusory opinion that her osteoarthritis was caused by the accident.  He did not address the degenerative conditions he found during surgery or explain why plaintiff's current symptoms were not related to preexisting conditions (see Auquilla v. Singh, 162 A.D.3d 463, 464, 78 N.Y.S.3d 323 [1st Dept. 2018]; Acosta v. Traore, 136 A.D.3d 533, 534, 24 N.Y.S.3d 652 [1st Dept. 2016]).

Furthermore, the photographs submitted by plaintiff show that the scar on her right knee does not constitute a “significant disfigurement” within the meaning of Insurance Law § 5102(d) (see Hutchinson v. Beth Cab Corp., 207 A.D.2d 283, 207 A.D.2d 283 [1st Dept. 1994]).