Opinion
2012-12-4
Henderson J. PRESCOD, Plaintiff–Respondent, v. Betty Leggiero O'BRIEN, etc., Defendant–Appellant.
Eisenberg & Kirsch, Liberty (Robert M. Lefland of counsel), for appellant. Robert I. Gruber, New York, for respondent.
Eisenberg & Kirsch, Liberty (Robert M. Lefland of counsel), for appellant. Robert I. Gruber, New York, for respondent.
SAXE, J.P., FRIEDMAN, ACOSTA, RENWICK, FREEDMAN, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about December 8, 2011, which, insofar as appealed from, denied defendant's motion for summary judgment dismissing plaintiff's claims of serious injury to his cervical spine and left knee within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to grant the motion insofar as it sought to dismiss plaintiff's claim regarding his cervical spine, and otherwise affirmed, without costs.
Defendant met her prima facie burden as to plaintiff's alleged serious injuries. With regard to the alleged cervical spine injury, defendant submitted the affirmed report of a radiologist opining that the MRI revealed no disc bulges, herniations, or changes causally related to the accident, and the affirmation of an orthopedist stating that plaintiff could not have sustained the alleged injuries as a result of the accident because if he had, he would have suffered from immediate pain, yet plaintiff did not seek treatment until five days after the accident ( see Barry v. Arias, 94 A.D.3d 499, 942 N.Y.S.2d 57 [1st Dept. 2012];Paulino v. Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 [1st Dept. 2012];Farrington v. Go On Time Car Serv., 76 A.D.3d 818, 819, 907 N.Y.S.2d 479 [1st Dept. 2010] ). Plaintiff failed to raise an issue of fact in opposition because he offered no admissible objective medical evidence of an injury to his cervical spine and the EMG/NVC study revealing radiculopathy is unsworn ( seeCPLR 2106; Barry v. Arias, 94 A.D.3d at 499–500, 942 N.Y.S.2d 57).
As to plaintiff's left knee injury, defendant met her prima facie burden by offering a radiologist's report stating that the MRI was unremarkable and showed no evidence of acute traumatic injury, and the affirmations of two orthopedists stating that any injuries were not caused by the accident. In opposition, plaintiff submitted no objective evidence in support of his claim of meniscal tears. However, plaintiff raised an issue of fact in opposition by proffering the affirmation of his orthopedist who opined that plaintiff exhibited patella crepitation and chondromalacia causing diminished range of motion in extension and flexion, and that these conditions, especially as to the left knee, were caused by the accident ( see Pommells v. Perez, 4 N.Y.3d 566, 576–577, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
We have considered the defendant's remaining arguments and find them unavailing.