Winters v. Cruz , 933 N.Y.2d 551 ( 2011 )

Defendants established their entitlement to judgment as a matter of law by showing that the injury to plaintiff’s right knee was not serious within the meaning of Insurance Law § 5102 (d). Defendants submitted, inter alia, affirmed reports from a radiologist and an orthopedist, showing a healed right knee contusion and a preexisting condition of degenerative arthritis, which diagnosis was previously documented in the medical records of plaintiffs orthopedic surgeon (see Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [2011]). Plaintiff had surgery on his left knee weeks before the accident, and received a steroid injection to the right knee at the same time.

In opposition, plaintiff raised a triable issue of fact with his expert’s affirmation stating that the trauma of the automobile accident, and not the degeneration, caused his knee injury (see Torain v Bah, 78 AD3d 588 [2010]). However, he failed to set forth any contemporaneous or recent limitations sustained as a result of that trauma (see generally Thompson v Abbasi, 15 AD3d 95, 97-98 [2005]). The limitations the expert did note relative to plaintiffs knee were not compared with the standards for normal ranges of motion, and thus, his report was deficient (see Soho v Konate, 85 AD3d 522, 523 [2011]). Moreover, during a post-surgery examination, the expert found improved range of motion, and no evidence is submitted of current quantitative or qualitative restriction.

The record further demonstrates that there are no triable issues with respect to plaintiffs 90/180-day claim. The orthopedist’s statement that plaintiff was “totally disabled” was too general to raise an issue of fact (see Morris v Ilya Cab Corp., 61 AD3d 434 [2009]). Furthermore, plaintiffs statement that he missed approximately four months of work was not supported by any documentation or affidavit from his employer (see Dembele v Cambisaca, 59 AD3d 352 [2009]). Concur — Tom, J.E, Andrias, Catterson, Abdus-Salaam and Román, JJ.