O'BRADOVICH v. MRIJAJ

Plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Her expert opined that the accident caused a fracture of her calcaneus, the heel bone adjacent to the ankle. However, on this record, there is no admissible evidence that plaintiff was ever diagnosed by her treating physician with a fracture that resulted from this accident. The unsworn MRI report merely contains the reference to a "cortical or impact fracture." The medical records of plaintiffs treating physician neither reference this MRI nor adopt any findings contained therein pertaining to a possible fracture. Plaintiff's evidence shows only that she had ankle surgery to debride an osteophyte and remove bone spurs. The operative report makes no mention of a fracture, nor does plaintiff's expert (also her treating physician) refer to such a fracture in his initial evaluation of plaintiff approximately four months after the accident.

We have considered and rejected plaintiffs other arguments as without merit.