Opinion
2001-09904
Submitted September 4, 2002.
September 24, 2002.
In related actions to recover damages for personal injuries, etc., Acme Bus Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered October 23, 2001, as denied that branch of its motion which was for summary judgment dismissing the complaint in Action No. 2 insofar as asserted against it on the ground that the plaintiff Tammy Doyle did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Fiedelman McGaw, Jericho, N.Y. (Dawn C. DeSimone of counsel), for appellant.
Rubin Licatesi, Garden City, N.Y. (Jason S. Firestein of counsel), for respondents.
Before: ANITA R. FLORIO, J.P., CORNELIUS J. O'BRIEN, WILLIAM D. FRIEDMANN, THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the branch of the motion which was for summary judgment dismissing the complaint in Action No. 2 insofar as asserted against Acme Bus Corp. is granted, and the complaint in Action No. 2 is dismissed insofar as asserted against the appellant.
The appellant's medical proof established that the plaintiff Tammy Doyle did not sustain a "[p]ermanent consequential" or "[s]ignificant" limitation of use of her right knee or spine. Thus, the appellant established, prima facie, that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
The affidavit of the injured plaintiff's treating orthopedist, submitted in opposition to the appellant's motion, stated that she had a full range of motion in her right knee. While a magnetic reasonance imaging report of the injured plaintiff's right knee indicated that there was the possibility of a meniscal tear, that finding was not confirmed by the orthopedist who subsequently performed arthroscopic surgery on the knee (see Vignola v. Varrichio, 243 A.D.2d 464). Otherwise, the affidavit of the orthopedist was conclusory and speculative.
The affidavits of the injured plaintiff's chiropractors failed to establish the duration of the alleged limitations occasioned by her alleged injuries, and thus, failed to raise a triable issue of fact regarding a significant limitation of the use of the injured plaintiff's spine (see Barbeito v. Kesev Taxi, 281 A.D.2d 379, 380). Accordingly, the appellant's motion for summary judgment should have been granted.
FLORIO, J.P., O'BRIEN, FRIEDMANN, ADAMS and CRANE, JJ., concur.