Arrowood v. Lowinger

May 30, 2002
Versions:294 A.D.2d 315
742 N.Y.S.2d 294
2002 N.Y. App. Div. LEXIS 5592

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered December 5, 2000, which granted defendants’ motion for sum mary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants met their initial burden of establishing that plaintiff has not sustained a “serious injury” within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956; Licari v Elliott, 57 NY2d 230), and plaintiffs submissions failed to raise an issue of fact. The findings of two doctors, who examined plaintiff in September and October 2000, respectively, that plaintiff had “exquisite tenderness” of his left Achilles heel and “extreme sensitivity on the back of the left ankle” do not demonstrate a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system” (Gaddy v Eyler, 79 NY2d, supra at 957; Licari v Elliott, 57 NY2d, supra at 236). Moreover, the findings were based on plaintiffs subjective complaints of pain are thus insufficient to raise a triable issue under Insurance Law § 5102 (d) (see, Toure v Avis Rent A Car Sys., 284 AD2d 271, 273; Charlton v Almaraz, 278 AD2d 145, 146). Notably, plaintiff did not seek treatment for over four years and returned to his employment within 11 weeks of the" accident. In these circumstances, the doctors’ conclusory assertions that plaintiff had suffered a permanent injury is insufficient to defeat defendants’ entitlement to summary judgment (see, Toure, 284 AD2d, supra at 272; Bandoian v Bernstein, 254 AD2d 205). A finding that plaintiff suffered a “2-4% impairment of the whole person, a 5-10% of the lower limb and 7-14% impairment of the ankle” is not supported by any objective medical tests performed by the doctor and appears to be tailored to meet statutory requirements (see, Lopez v Senatore, 65 NY2d 1017, 1019; Castano v Synergy Gas Corp., 250 AD2d 640). In any event, the claimed limitations are not of sufficient magnitude to qualify as a “ ‘significant’ or ‘important’ limitation of use” (Bandoian v Bernstein, supra at 205; Licari v Elliott, supra). An MRI report which allegedly showed a tendon rupture of plaintiffs right ankle was taken 3V2 years after the accident and the injury was not shown to be causally related to the accident (see, Cacaccio v Martin, 235 AD2d 384). Notably, none of plaintiffs treating physicians diagnosed a ruptured tendon following the accident and the doctors who examined plaintiff in 2000 made no findings of injury to his right ankle. Plaintiffs affidavit, in which he claimed to have been unable to give golf lessons for three to five months following the accident is contradicted by his deposition testimony and is, in any event, unsupported by a physician’s affidavit substantiating his impairment and relating it to the accident (see, Sigona v New York City Tr. Auth., 255 AD2d 231). Plaintiffs unsubstantiated claim that he was unable to do household chores is insufficient to show that he suffered “a medically determined injury or impairment of a non-permanent nature” which prevented him from “performing substantially all of the material acts which constitute [his] ususal and customary daily activities” for at least 90 days of the 180 days following the accident (Insurance Law § 5102 [d]; see also, Eisen v Walter Samuels, Inc., 215 AD2d 149; Hutchinson v Beth Cab Corp., 204 AD2d 151). Concur—Buckley, J.P., Rosenberger, Lerner, Rubin and Marlow, JJ.