Opinion
No. 9523, Index 7879/03.
December 19, 2006.
Order, Supreme Court, Bronx County (Lucy Billings, J.), entered September 30, 2005, which granted defendant's motion for summary judgment dismissing the complaint in its entirety, unanimously affirmed, without costs.
Peter A. Frankel, New York, for appellant.
Boeggeman, George, Hodges Corde, P.C., White Plains (Daniel O'Neill of counsel), for respondent.
Before: Mazzarelli, J.P., Friedman, Sullivan, Catterson and Malone, JJ.
Plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Her expert opined that the accident caused a fracture of her calcaneus, the heel bone adjacent to the ankle. However, on this record, there is no admissible evidence that plaintiff was ever diagnosed by her treating physician with a fracture that resulted from this accident. The unsworn MRI report merely contains the reference to a "cortical or impact fracture." The medical records of plaintiffs treating physician neither reference this MRI nor adopt any findings contained therein pertaining to a possible fracture. Plaintiff's evidence shows only that she had ankle surgery to debride an osteophyte and remove bone spurs. The operative report makes no mention of a fracture, nor does plaintiff's expert (also her treating physician) refer to such a fracture in his initial evaluation of plaintiff approximately four months after the accident.
We have considered and rejected plaintiffs other arguments as without merit.