Harrigan v. Kemmaj

85 A.D.3d 559, 925 N.Y.S.2d 331

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 2011
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered September 14, 2010, which granted defendant’s motion for summary judgment dismissing the complaint on the threshold issue of serious injury within the meaning of Insurance Law § 5102 (d), unanimously modified, on the law, without costs, the motion denied as to the 90/180-day claim, and otherwise affirmed, without costs.

Defendant made a prima facie showing that plaintiff did not sustain permanent injuries as a result of the April 2007 automobile accident by submitting an affirmed report by an orthopedist who examined plaintiff in March 2009 and found full range of motion and no abnormalities in her knee (see Porter v Bajana, 82 AD3d 488 [2011]; DeJesus v Paulino, 61 AD3d 605, 607 [2009]).

In response, plaintiff failed to raise an issue of fact as to the permanent nature of her injuries. We note that the August 2007 postoperative report by plaintiffs surgeon indicates no restrictions in range of motion (see Pou v E&S Wholesale Meats, Inc., 68 AD3d 446 [2009]).

Defendant failed to show prima facie that plaintiff did not sustain a 90/180-day injury. Concur — Andrias, J.P., Friedman, Sweeny, Renwick and Román, JJ.