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Mild, minor, slightJune 29, 2017

Cabrera v Apple Provisions, Inc., 2017 NY Slip Op 05044 (1st Dept. 2017)

As to the cervical spine claim, plaintiff’s treating physician found normal range of motion in February 2013, but some limitations a month later. The physician’s failure to explain the inconsistencies between her findings of deficits before and after the findings of full range of motion, renders her opinion speculative (see Santos v Perez, 107 AD3d 572, 574 [1st Dept 2013]; Colon v Torres, 106 AD3d 458 [1st Dept 2013]). As to the lumbar spine, plaintiff’s treatment records showed that he had normal or near-normal lumbar spine range of motion within two months after the accident, which is insufficient to support a serious injury claim (see Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Eisenberg v Guzman, 101 AD3d 505, 506 [1st Dept 2012]).

Regarding the left knee, plaintiff presented medical evidence of a lateral meniscal tear, which his physician stated was causally related to the subject accident. However, his physician failed to make any measurements of his knee, relying on unaffirmed records of his surgeon, which was impermissible (see Malupa v Oppong, 106 AD3d 538, 539 [1st Dept 2013]). In any event, the last measurement found in the surgeon’s records showed only a five-degree deficit in [*2]range of motion, which, again, was too minor in extent, degree and duration to support a serious left knee injury claim involving significant limitation of use (see Gaddy v Eyler, 79 NY2d at 957; Vasquez v Almanzar, 107 AD3d 538, 539-540 [1st Dept 2013]).”

Interesting issues.  1) Full ROM at or near time of accident spells doom for later diminishment; 2) 5 degree deficiency in ROM not enough to prove serious injury,

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