Practice point: The Appellate Division affirmed the granting of the motion dismissing plaintiff's claims based on a lack of a serious injury within the meaning of Insurance Law § 5102(d).
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. 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.
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. 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. In the absence of evidence of limitations, the orthopedist's conclusory opinion that the accident caused the right knee injury was also insufficient.
Student note: The unaffirmed MRI reports, which were the only objective evidence submitted by plaintiff concerning her claims of spinal injury, are inadmissible because they are unsworn, and were not relied upon by defendant's experts.
Case: Hernandez v Cespedes, NY Slip Op 05662 (1st Dep't July 28, 2016)
Here is the decision.
Tomorrow's issue: Summary judgment in a negligence action.