DELLINO v. PUELLO (2020)

Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered July 26, 2019, which granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate that she suffered a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants satisfied their prima facie burden by submitting the reports of their neurologist and orthopedist, who found only slight limitations in plaintiff's right knee, and opined that plaintiff's examination was objectively normal with no objective evidence of any deficits, and that plaintiff's claimed injury was not causally related to the subject accident (see Stovall v. New York City Tr. Auth., 181 A.D.3d 486, 117 N.Y.S.3d 840 [1st Dept. 2020];  Bianchi v. Mason, 179 A.D.3d 567, 118 N.Y.S.3d 559 [1st Dept. 2020]).  Defendants also relied on plaintiff's own medical records, which showed that within a week after the subject accident plaintiff sought treatment from a doctor for various other injuries allegedly sustained in a prior accident, but made no complaints concerning her right knee, and that another doctor treating her in connection with the prior injuries found her right knee had no signs of injury and normal range of motion about three weeks after the accident (see Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 993 N.Y.S.2d 1 [1st Dept. 2014], affd 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2015]).

In opposition, plaintiff failed to raise an issue of fact.  Her expert failed to reconcile his findings of restricted range of motion four months after the subject accident with the earlier finding of full range of motion by plaintiff's emergency pain physician three days after the accident (see Jenkins v. Murtagh, 150 A.D.3d 482, 483, 51 N.Y.S.3d 883 [1st Dept. 2017];  Booth v. Milstein, 146 A.D.3d 652, 45 N.Y.S.3d 438 [1st Dept. 2017]).  The lack of any evidence of contemporaneous treatment of her right knee also undermines plaintiff's claim that she sustained a causally related injury (see Rosa v. Mejia, 95 A.D.3d 402, 943 N.Y.S.2d 470 [1st Dept. 2012]).

Defendants are entitled to dismissal of the 90/180-day claim in the absence of a causal connection between plaintiff's right knee condition and the subject accident (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 536, 102 N.Y.S.3d 588 [1st Dept. 2019]).  Furthermore, according to plaintiff's testimony, she was confined to home for only three days after the accident (see Tejada v. LKQ Hunts Point Parts, 166 A.D.3d 436, 437–438, 88 N.Y.S.3d 156 [1st Dept. 2018]).