Hernandez v Cespedes

Hernandez v Cespedes 2016 NY Slip Op 05662 Decided on July 28, 2016 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 July 28, 2016
Sweeny, J.P., Renwick, Moskowitz, Kapnick, Gesmer, JJ.
1225 350468/10

[*1]Mercedes Hernandez, etc., Plaintiff-Appellant,

v

David Cespedes, Defendant-Respondent, Jose A. Bencosme, et al., Defendants.

Law Offices of Frank A. Whelan, P.C., Rockville Centre (Frank A. Whelan of counsel), for appellant.

Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 3, 2014, which, to the extent appealed from as limited by the briefs, granted defendant David Cespedes's motion for summary judgment dismissing plaintiff's claims based on a lack of a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendant established entitlement to judgment as a matter of law by showing that plaintiff did not suffer a serious injury to her cervical spine, lumbar spine, or right knee as a result of the motor vehicle accident at issue. Defendant submitted the affirmed reports of an orthopedist and a neurologist, showing no significant limitations, negative clinical results, and a resolved sprain and contusion (see Michels v Marton, 130 AD3d 476 [1st Dept 2015]; Ahmed v Cannon, 129 AD3d 645 [1st Dept 2015]). Defendant also submitted a radiologist's affirmed report which found, upon review of the MRI scans, no evidence of any disc bulges or herniations in the spine, no recent or acute posttraumatic or causally related disc changes, and only preexisting degenerative changes in the knee (see Nova v Fontanez, 112 AD3d 435 [1st Dept 2013]; Fuentes v Sanchez, 91 AD3d 418 [1st Dept 2012]).

In opposition, plaintiff failed to raise a triable issue of fact. She provided no medical findings of resulting limitations in use of her spine or right knee, shown by either quantified range of motion testing or by a qualitative assessment of her limitations compared with normal function (see Toure v Avis Rent A Car Sys, Inc., 98 NY2d 345, 350, 353 [2002]). Plaintiff's orthopedic surgeon never examined her spine, and, although he performed diagnostic arthroscopic surgery on her right knee, he failed to set forth any findings of limitations in the knee, either before or after the surgery (see Mitrotti v Elia, 91 AD3d 449, 450 [1st Dept 2012]). In light of the absence of evidence of limitations, the orthopedist's conclusory opinion that the accident caused the right knee injury was also insufficient (see Henchy v VAS Express Corp., 115 AD3d 478, 479 [1st Dept 2014]). Furthermore, the unaffirmed MRI reports, which were the only [*2]objective evidence submitted by plaintiff concerning her claims of spinal injury, are inadmissible because they are unsworn, and ere not relied upon by defendant's experts (see Malupa v Oppong, 06 AD3d 538, 539 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 28, 2016

CLERK