ARROWOOD v. LOWINGER

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

Robert ARROWOOD, et al., Plaintiffs-Appellants, v. Steven E. LOWINGER, et al., Defendants-Respondents.

Decided: May 30, 2002

BUCKLEY, J.P., ROSENBERGER, LERNER, RUBIN and MARLOW, JJ. Marylyn P. Lipman, for Plaintiffs-Appellants. Eleanor R. Goldman, for Defendants-Respondents.

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered December 5, 2000, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants met their initial burden of establishing that plaintiff has not sustained a “serious injury” within the meaning of Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088), and plaintiff's submissions failed to raise an issue of fact.   The findings of two doctors, who examined plaintiff in September and October 2000, respectively, that plaintiff had “exquisite tenderness” of his left Achilles heel and “extreme sensitivity on the back of the left ankle” do not demonstrate a “permanent consequential limitation of a body organ or a member” or a “significant consequential limitation of a use of a body function or system” (Gaddy v. Eyler, 79 N.Y.2d, supra, at 957;  Licari v. Elliott, 57 N.Y.2d, supra, at 236).   Moreover, the findings were based on plaintiff's subjective complaints of pain are thus insufficient to raise a triable issue under Insurance Law § 5102(d) (see, Toure v. Avis Rent A Car Sys., Inc., 284 A.D.2d 271, 273, 728 N.Y.S.2d 140;  Charlton v. Almaraz, 278 A.D.2d 145, 146, 718 N.Y.S.2d 52).   Notably, plaintiff did not seek treatment for over four years and returned to his employment within 11 weeks of the accident.   In these circumstances, the doctors' conclusory assertions that plaintiff had suffered a permanent injury is insufficient to defeat defendants' entitlement to summary judgment (see, Toure, 284 A.D.2d, supra, at 272, 728 N.Y.S.2d 140;  Bandoian v. Bernstein, 254 A.D.2d 205, 679 N.Y.S.2d 123).   A finding that plaintiff suffered a “2-4% impairment of the whole person, a 5-10% of the lower limb and 7-14% impairment of the ankle” is not supported by any objective medical tests performed by the doctor and appears to be tailored to meet statutory requirements (see, Lopez v. Senatore, 65 N.Y.2d 1017, 1019, 494 N.Y.S.2d 101, 484 N.E.2d 130;  Castano v. Synergy Gas Corp., 250 A.D.2d 640, 672 N.Y.S.2d 417).   In any event, the claimed limitations are not of sufficient magnitude to qualify as a “significant” or “important limitation of use” (Bandoian v. Bernstein, supra;  Licari v. Elliott, supra ).   An MRI report which allegedly showed a tendon rupture of plaintiff's right ankle was taken three and one-half years after the accident and the injury was not shown to be causally related to the accident (see, Cacaccio v. Martin, 235 A.D.2d 384, 652 N.Y.S.2d 74).   Notably, none of plaintiff's treating physicians diagnosed a ruptured tendon following the accident and the doctors who examined plaintiff in 2000 made no findings of injury to his right ankle.   Plaintiff's affidavit, in which he claimed to have been unable to give golf lessons for three to five months following the accident is contradicted by his deposition testimony and is, in any event, unsupported by a physician's affidavit substantiating his impairment and relating it to the accident (see, Sigona v. New York City Tr. Auth., 255 A.D.2d 231, 680 N.Y.S.2d 228).   Plaintiff's unsubstantiated claim that he was unable to do household chores is insufficient to show that he “suffered, a medically determined injury or impairment of a non-permanent nature” which prevented him from “performing substantially all of the material acts which constitute ․ [his] usual and customary daily activities” for at least 90 days of the 180 days following the accident (Insurance Law § 5102[d];  see also, Eisen v. Walter Samuels, Inc., 215 A.D.2d 149, 626 N.Y.S.2d 109;  Hutchinson v. Beth Cab Corp., 204 A.D.2d 151, 612 N.Y.S.2d 10).