Harrigan v Kemmaj
2011 NY Slip Op 05200 [85 AD3d 559]
June 16, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 10, 2011


Karyn Harrigan, Also Known as Karyn Tyler, Appellant,
v
Henchan Kemmaj, Respondent.

[*1] Greenberg & Massarelli, LLP, Purchase (Crystal Massarelli of counsel), for appellant.

Cohen, Kuhn & Associates, New York (Ira Goldman of counsel), for respondent.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered September 14, 2010, which granted defendant's motion for summary judgment dismissing the complaint on the threshold issue of serious injury within the meaning of Insurance Law § 5102 (d), unanimously modified, on the law, without costs, the motion denied as to the 90/180-day claim, and otherwise affirmed, without costs.

Defendant made a prima facie showing that plaintiff did not sustain permanent injuries as a result of the April 2007 automobile accident by submitting an affirmed report by an orthopedist who examined plaintiff in March 2009 and found full range of motion and no abnormalities in her knee (see Porter v Bajana, 82 AD3d 488 [2011]; DeJesus v Paulino, 61 AD3d 605, 607 [2009]).

In response, plaintiff failed to raise an issue of fact as to the permanent nature of her injuries. We note that the August 2007 postoperative report by plaintiff's surgeon indicates no restrictions in range of motion (see Pou v E&S Wholesale Meats, Inc., 68 AD3d 446 [2009]).

Defendant failed to show prima facie that plaintiff did not sustain a 90/180-day injury. Concur—Andrias, J.P., Friedman, Sweeny, Renwick and RomÁn, JJ.