Gilmonio v Toussaint

[*1] Gilmonio v Toussaint 2010 NY Slip Op 50258(U) [26 Misc 3d 139(A)] Decided on February 24, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 24, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
.

Jesus Gilmonio, Plaintiff-Appellant, 570789/09

against

Nadia Toussaint and Mina Taxi, Inc. Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jeffrey K. Oing, J.), entered April 7, 2009, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for partial summary judgment.

Per Curiam.

Order (Jeffrey K. Oing, J.), entered April 7, 2009, affirmed, with $10 costs.

The evidence submitted in support of defendants' motion for summary judgment dismissing the complaint included medical reports submitted by plaintiff's treating physician demonstrating that plaintiff had full range of motion in his right knee less than two weeks after the underlying motor vehicle accident. Defendants also submitted objective medical evidence showing that approximately 11 months after the accident plaintiff had no permanent injury to his knee and that he could perform all daily activities without restrictions. Moreover, defendants submitted plaintiff's bill of particulars in which plaintiff acknowledged that he was only confined to his home and bed for two weeks following the accident (see Hernandez v Rodriguez, 63 AD3d 520 [2009]). Therefore, defendants made a prima facie showing of entitlement to judgment as a matter of law.

In opposition, plaintiff failed to raise a triable issue. Contrary to plaintiff's contention, a torn meniscus, standing alone, is not evidence of a serious injury under Insurance Law § 5102(d) (see Gibbs v Hee Hong, 63 AD3d 559 [2009]). The conclusions of plaintiff's treating physician contained in the physician's affidavit were insufficient to raise a triable issue, since those conclusions were premised on an incomplete history of plaintiff's medical treatment (see Sky v Tabs, 57 AD3d 235 [2008]; see also Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]). Notably, the treating physician did not refer to or address (1) his conclusion in his report contemporaneous with the accident that plaintiff had full range of motion in his right knee, (2) his conclusions in his report approximately four weeks after plaintiff had knee surgery that plaintiff had no swelling or pain in his right knee and had only minor limitations in the range of [*2]motion in that knee, and (3) his conclusion in his report approximately five months after the accident that plaintiff had "full painless range of motion" in his knee.

That plaintiff experienced a reduced or changed work schedule does not raise a triable issue under the 90/180-day category (see Colon v Tavares, 60 AD3d 419 [2009]; see also Fernandez v Niamou, 65 AD3d 935 [2009]). Rather, it was incumbent upon plaintiff to raise a triable issue with respect to whether "substantially all" his usual activities were curtailed during the requisite time period (see Licardi v Elliot, 57 NY2d 230 [1982]), which plaintiff failed to do. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 24, 2010