Opinion
2012-12-13
Alexander EISENBERG, Plaintiff–Respondent, v. Marcos GUZMAN, Defendant–Appellant.
Marjorie E. Bornes, Brooklyn, for appellant. Paris & Chaikin, PLLC, New York (Chad P. Ayoub of counsel), for respondent.
Marjorie E. Bornes, Brooklyn, for appellant. Paris & Chaikin, PLLC, New York (Chad P. Ayoub of counsel), for respondent.
TOM, J.P., SWEENY, MOSKOWITZ, RENWICK, CLARK, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered December 27, 2011, which, in an action for personal injuries sustained in a motor vehicle accident, denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendant established his entitlement to judgment as a matter of law as to plaintiff's claims of “significant limitation” and “consequential limitation” of use of his anterior cruciate ligament (ACL) of his left knee. Although defendant's orthopedist found a loss of range of motion in plaintiff's left knee in 2009, defendant's radiologist found no evidence of an ACL tear on the MRI taken of the left knee after the subject accident ( see Linton v. Nawaz, 62 A.D.3d 434, 439, 879 N.Y.S.2d 82 [1st Dept. 2009],affd. on other grounds14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010] ).
Plaintiff's opposition failed to raise a triable issue of fact. Even assuming that plaintiff came forward with proof that this particular body part had not been injured during his two prior surgeries ( see McArthur v. Act Limo, Inc., 93 A.D.3d 567, 940 N.Y.S.2d 616 [1st Dept. 2012] ), and assuming, further, that he raised an issue of fact as to whether this ligament was actually torn, via the affirmation of his radiologist, plaintiff failed to come forward with proof of “significant” or “important” limitations caused by the accident. Indeed, the examination performed by plaintiff's physician in 2011 measured only minor limitations in range of motion ( see Canelo v. Genolg Tr., Inc., 82 A.D.3d 584, 585, 919 N.Y.S.2d 27 [1st Dept. 2011] ).
Defendant met his burden as to the 90/180–day claim by relying on plaintiff's deposition testimony, where he stated that he was confined to home for only two weeks, and did not work because there was “no work” ( see Arenas v. Guaman, 98 A.D.3d 461, 949 N.Y.S.2d 688 [1st Dept. 2012];Williams v. Baldor Specialty Foods, Inc., 70 A.D.3d 522, 895 N.Y.S.2d 394 [1st Dept. 2010] ).