TOM
Okun, Oddo & Babat, P.C., New York (Darren Seilback of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondents.
TOM, J.P., RENWICK, MOSKOWITZ, MANZANET–DANIELS, FEINMAN, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered May 6, 2014, which, to the extent appealed from as limited by the briefs, granted the motion of Rafael Contin and Mari Mora–Martinez for summary judgment dismissing infant plaintiff Naixsha M.'s claims against all defendants due to her inability to demonstrate a serious injury to her right knee or cervical spine within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to plaintiff's claim of “significant” limitations of use of her right knee, and otherwise affirmed, without costs.
In June 2011, plaintiff, an unrestrained passenger in a taxi owned by defendant Contin and operated by defendant Mora–Martinez, was injured when the taxi struck a New York City Police Department vehicle responding to an emergency.
The moving defendants met their initial burden by showing, through the affirmed report of their expert, that plaintiff had full range of motion in her neck and right knee. The expert further concluded that these injuries were not the result of trauma, as there were no objective neurological findings ( see Malupa v. Oppong, 106 A.D.3d 538, 539, 966 N.Y.S.2d 9 [1st Dept. 2013] ), and no edema in plaintiff's right knee ( see Arroyo v. Morris, 32 Misc.3d 1240(A), *4, 2010 WL 7429752 [Sup.Ct., Bronx County 2010], affd. 85 A.D.3d 679, 926 N.Y.S.2d 488 [1st Dept.2011]; and see Chaston v. Doucoure, 125 A.D.3d 500, 3 N.Y.S.3d 33 [1st Dept.2015] ).
In opposition, plaintiff raised an issue of fact as to whether, as a result of the accident, she sustained a serious injury to her right knee involving significant, but not permanent, limitations in use. Her orthopedic surgeon opined that it was necessary to perform arthroscopic surgery on plaintiff's knee about two months after the accident because she continued to be symptomatic despite conservative treatment. During surgery, he found a meniscal tear. In addition, plaintiff underwent therapy for her knee both before and after her August 2011 surgery ( see Mejia v. Ramos, 124 A.D.3d 449, 1 N.Y.S.3d 73 [1st Dept.2015] ). The surgeon attributed plaintiff's injuries to the accident, and not degeneration, since plaintiff was 16 years old when she was injured, and was previously asymptomatic ( see Vera v. Islam, 70 A.D.3d 525, 895 N.Y.S.2d 73 [1st Dept.2010]; June v. Akhtar, 62 A.D.3d 427, 878 N.Y.S.2d 59 [1st Dept.2009] ).
However, the medical records submitted by plaintiff show that her surgeon found full range of motion in her knee one month after the surgery. While he found a deficit in range of motion upon examination three years later, the surgeon failed to reconcile his earlier normal findings with that later finding ( see Colon v. Torres, 106 A.D.3d 458, 965 N.Y.S.2d 90 [1st Dept.2013] ). This failure entitles defendants to summary judgment on any claim of a serious injury based on the “permanent consequential limitation of use” category ( see Sutliff v. Qadar, 122 A.D.3d 452, 453, 996 N.Y.S.2d 260 [1st Dept.2014] ).
Plaintiff also failed to submit medical evidence sufficient to raise an issue of fact as to whether she suffered either “significant” or “permanent consequential” limitation of use of her cervical spine as a result of the accident, since her physicians found only relatively minor limitations ( see Sone v. Qamar, 68 A.D.3d 566, 889 N.Y.S.2d 845 [1st Dept.2009] ).
We note that if plaintiff establishes a serious injury, she is entitled to recover damages for all injuries incurred as a result of an accident, even those that do not meet the serious injury threshold ( see Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549–550, 898 N.Y.S.2d 110 [1st Dept.2010] ).