Mejia v Ramos, 2015 NY Slip Op 00311 (1st Dept. 2015)
To the extent plaintiff contends the [surgical] report itself found abnormalities in the knee, such symptoms, without evidence of some permanent or significant limitation, do not constitute a serious injury under the statute (see Jno-Baptiste v Buckley, 82 AD3d 578, 578 [1st Dept 2011]). Contrary to plaintiff’s contention, defendants’ expert need not review plaintiff’s actual MRI films or intra-operative photographs to make a prima facie showing (see Rosa-Diaz v Maria Auto Corp., 79 AD3d 463, 464 [1st Dept 2010]).
In opposition, plaintiff failed to raise a triable issue of fact as to the existence of a “permanent consequential limitation of use” of the knee. Although the report of his recent examination shows permanency, the persisting limitations noted are not sufficiently meaningful to sustain a permanent consequential limitation claim (see Arrowood v Lowinger, 294 AD2d 315, 316 [1st Dept 2002]). Plaintiff did, however, raise a triable issue of fact as to whether he sustained a “significant limitation of use” of the knee by submitting reports from his treating physiatrist and orthopedic surgeon finding significant limitations and positive clinical findings about 1½ months after the accident, and weeks before surgery (see Thomas v NYLL Mgt. Ltd., [*2]110 AD3d 613, 614 [1st Dept 2013]). Plaintiff also raised a triable issue of fact as to causation, since his surgeon concluded that the injuries he observed during surgery were traumatically-induced and causally related to the accident (see Vargas v Moses Taxi, Inc., 117 AD3d 560 [1st Dept 2014]; Prince v Lovelace, 115 AD3d 424 [1st Dept 2014]; Calcano v Rodriguez, 103 AD3d 490 [1st Dept 2013]). Based on his treatment and review of plaintiff’s medical records, the treating physiatrist also opined that the injuries observed during surgery were traumatic in nature and causally related to the accident (see McSweeney v Cho, 115 AD3d 572 [1st Dept 2014]; James v Perez, 95 AD3d 788, 789 [2012]).
The divorcing of “significant limitation” from “permanent consequential” has opened the portion of the floodgates in letting in threshold cases that Perl kept locked. Now, the carriers have to eat it on the no-fault end and on the BI end. Not sure this is what the legislature meant when it imposed a serious injury threshold.
