Valdez v Benjamin

Valdez v Benjamin 2012 NY Slip Op 09148 Decided on December 27, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 27, 2012
Andrias, J.P., Saxe, Moskowitz, Abdus-Salaam, Manzanet-Daniels, JJ.
8423 301239/10

[*1]Anthony Valdez, Plaintiff-Appellant,

v

Norris D. Benjamin, et al., Defendants-Respondents.




Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for
appellant.
Desena & Sweeney, LLP, Hauppauge (Shawn P.
O'Shaughnessy of counsel), for respondents.

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered June 27, 2011, which granted defendants' motion for summary judgment dismissing the complaint alleging serious injuries under Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants met their burden of establishing the absence of a serious injury to plaintiff's right knee by submitting their neurologist's report finding full range of motion, negative test results, and resolved injuries, and their radiologist's report finding absence of tears, trauma, or other causally related injuries (see Fuentes v Sanchez, 91 AD3d 418 [1st Dept 2012]). In opposition, plaintiff failed to raise a triable issue of fact. His treating physician provided neither evidence of range of motion limitations nor a qualitative assessment of the knee, and his finding of permanency relied on plaintiff's subjective complaints of pain (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). While plaintiff's radiologist found a meniscal tear, the record contains no evidence of any limitations resulting from that tear (see Dembele v Cambisaca, 59 AD3d 352 [1st Dept 2009]).

Plaintiff's contention that defendants failed to establish the absence of serious injury to his cervical and lumbar spine because of the inconsistencies or omissions in their experts' reports is unpreserved, and we decline to consider it (see Alicea v Troy Trans, Inc., 60 AD3d 521, 521—522 [1st Dept 2009]). In any event, plaintiff failed to rebut defendants' prima facie showing of lack of causation. Defendants' radiologist concluded that the claimed injuries in both parts of the spine were preexisting degenerative conditions, and found no evidence of trauma or causally related injuries (see Graves v L & N Car Serv., 87 AD3d 878 [1st Dept 2011]). Plaintiff's radiologist did not opine as to the etiology of the injuries (id.). Plaintiff's treating physician opined as to causation, albeit conclusorily (see Biascochea v Boves, 93 AD3d 548, 548-549 [1st Dept 2012]). However, plaintiff failed to explain adequately the gap in treatment from six months or a year after the February 2008 accident through February 2011 (see Pommells v Perez, 4 NY3d 566, 574 [2005]). [*2]

Plaintiff's admission at deposition that he returned to work two days after the accident established as a matter of law that he did not suffer a 90/180—day injury (see Seck v Balla, 92 AD3d 543 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 27, 2012

CLERK