HODGES v. JONES

Order unanimously affirmed without costs. Memorandum: Defendant met his burden of submitting evidence to demonstrate that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Contrary to plaintiff's contention, that burden may be satisfied by submitting plaintiff's deposition testimony and the medical records of plaintiff that were supplied by plaintiff's counsel ( see, Nigro v. Penree, 238 A.D.2d 908 [decided herewith]; Lowe v. Bennett, 122 A.D.2d 728, affd 69 N.Y.2d 700). Those submissions establish that plaintiff did not fracture her right knee or sustain a significant limitation of use of a body function or system. Although plaintiff's treating physician submitted an affidavit wherein he opined that plaintiff may have sustained a bone chip or cartilage tear in the right knee, additional X rays and an MRI performed six months after that affidavit was prepared revealed no fracture, tear or bone fragments. Moreover, the abnormalities found in plaintiff's knee as a result of the MRI were described as "mild". (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Summary Judgment.)