HODGES v. JONES

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

Pearlie HODGES, Appellant, v. Fred D. JONES, Respondent.

Decided: April 25, 1997

Before PINE, J.P., and LAWTON, DOERR, BOEHM and FALLON, JJ. Charles L. Davis, Buffalo, for Appellant. Bouvier O'Connor (Chris G. Trapp, of counsel), Buffalo, for Respondent.

 Defendant met his burden of submitting evidence to demonstrate that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).   Contrary to plaintiff's contention, that burden may be satisfied by submitting plaintiff's deposition testimony and the medical records of plaintiff that were supplied by plaintiff's counsel (see, Nigro v. Penree, 238 A.D.2d 908, 661 N.Y.S.2d 137 [decided herewith];  Lowe v. Bennett, 122 A.D.2d 728, 511 N.Y.S.2d 603, affd 69 N.Y.2d 700, 512 N.Y.S.2d 364, 504 N.E.2d 691).   Those submissions establish that plaintiff did not fracture her right knee or sustain a significant limitation of use of a body function or system.   Although plaintiff's treating physician submitted an affidavit wherein he opined that plaintiff may have sustained a bone chip or cartilage tear in the right knee, additional X rays and an MRI performed six months after that affidavit was prepared revealed no fracture, tear or bone fragments.   Moreover, the abnormalities found in plaintiff's knee as a result of the MRI were described as “mild”.

Order unanimously affirmed without costs.

MEMORANDUM: