Bamundo v. Fiero

The defendants met their prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 , 956-957 [1992]). The defendants made a prima facie showing, through the affirmed report of their examining orthopedist, that the injuries the plaintiff allegedly sustained to his left knee did not constitute a serious injury under the permanent consequential limitation of use and/or the significant limitation of use categories of Insurance Law § 5102 (d) (see Dunbar v Prahovo Taxi, Inc., 84 AD3d 862 , 863 [2011]; Staff v Yshua, 59 AD3d 614 [2009]). The defendants also demonstrated, prima facie, that the plaintiff did not sustain a serious injury under the 90/180 day category of Insurance Law § 5102 (d) by submitting the plaintiff’s deposition testimony, which revealed that he missed only seven days of work in the first 180 days following the subject accident (see Lewars v Transit Facility Mgt. Corp., 84 AD3d 1176 , 1178 [2011]).

In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff’s submissions indicated that he sustained a torn meniscus in his left knee, evidence of a torn meniscus is insufficient to raise a triable issue of fact under the permanent consequential limitation of use and the significant limitation of use categories of Insurance Law § 5102 (d) absent objective proof of the extent and duration of the alleged physical limitations resulting from the injury (see Dunbar v Prahovo Taxi, Inc., 84 AD3d at 863 ; McLoud v Reyes, 82 AD3d 848 , 849 [2011]; Simanovskiy v Barbaro, 72 AD3d 930 , 932 [2010]). Further, in view of the plaintiffs deposition testimony that he missed only seven days of work as a result of the subject accident, he failed to raise a triable issue of fact under the 90/180