MEDLEY v. LOPEZ

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

Yvette MEDLEY, Plaintiff-Appellant, v. Simon B. LOPEZ, Defendant-Respondent.

Decided: May 27, 2004

NARDELLI, J.P., LERNER, FRIEDMAN, MARLOW, GONZALEZ, JJ. Lucchese & D'Ammora, LLP, White Plains (Victor J. D'Ammora of counsel), for appellant. Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered June 18, 2003, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff fails to adduce objective proof of a serious injury (Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197).   Her doctor represents that a “traumatic internal derangement” to her left knee is “confirmed by an MRI revealing a tear of the posterior horn of the medial meniscus and a type II degenerative tear in the lateral meniscus.”   However, the MRI report on which the doctor relies only states that “[t]here is a type II degenerative signal in the posterior and anterior horns of the medial and lateral menisci [and] a probable tear in the posterior horn of the medial miniscus extending posteriorly and medially.”   We perceive no suggestion in this language that the probable tear to the medial meniscus was traumatic as opposed to degenerative in origin.   The claim of serious injury to the left knee is also inconsistent with a prior CAT scan that plaintiff's doctor mentions but does not explain, and a lengthy gap in treatment prior to the making of defendant's motion for summary judgment (see Vaughan v. Baez, 305 A.D.2d 101, 758 N.Y.S.2d 648).   The reports of plaintiff's other health care providers are not in admissible form and therefore cannot be considered (Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76).