FILED: QUEENS COUNTY CLERK 10/29/ :04 PM INDEX NO /2014 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/29/2015

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1 FILED: QUEENS COUNTY CLERK 10/29/ :04 PM INDEX NO /2014 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/29/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS )( KEITH SAARI, -against- Plaintiff, CAROL D'ANGELO and JAMES D'ANGELO, Index No.: /14 AFFIRMATION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Defendants }{ ANTHONY BROCCOLO, ESQ. being an attorney duly admitted to practice before the Courts of the State of New York, affirms the following to be true pursuant to CPLR 2106: 1. l am an associate with the law firm of TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP, attorneys for CAROL D'ANGELO and JAMES D'ANGELO (referred to herein as "Defendants") in this action. As such, and by virtue of my handling of this matter and review of the file maintained by my office, I am fully familiar with the facts and circumstances set forth herein. 2. I submit this affirmation in support of Defendants' motion for summary judgment on the issue of damages. As discussed in more detail below and in defendant's accompanying memorandum oflaw, plaintiffs' alleged injuries do not satisfy the serious injury threshold. 3. It is respectfully submitted that an arthroscopic procedure is not a "serious injury" within the meaning of 5102 of the Insurance Law of the State of New York. Here, Plaintiffs own medical records and deposition testimony establish that he never sustained a causally-related physical limitation significant enough to constitute a threshold "serious injury" within the meaning of the statute, and the independent medical examination of the Plaintiff confirms this fact. Plaintiffs arthroscopic procedure cannot transform his otherwise insignificant soft -tissue injury

2 into a threshold "serious injury," especially since the procedure actually improved his condition. Relevant Procedural History 4. This matter arises out of personal injuries allegedly sustained by Keith Saari ("Plaintiff'). Plaintiff commenced this action with filing of his Summons and Verified Complaint on or around March 25, (See Plaintiffs Summons and Verified Complaint annexed hereto as Exhibit "A"). In his Complaint, plaintiff alleges that on September 15, 2013, he was walking southbound on 31 '' Street when he was struck by Defendants' vehicle. (See Exhibit "A" at~~ 7 and 8). 5. Defendants appeared in this action via service and filing of their Verified Answer on or about June 26,2014. (A copy of Defendants' Answer is annexed hereto as Exhibit "B"). 6. Plaintiff served a Bill of Particulars detailing his damages and liability allegations on or about September 16, Plaintiff also served a Supplemental Verified Bill of Particulars dated November 3, 2014, a 2"d Supplemental Bill of Particulars dated January 9, 2015, a 3'd Supplemental Bill of Particulars dated March 24,2015, and a 4 1 h Supplemental Bill of Particulars dated June 9, (A copy of Plaintiffs Bills of Particulars are annexed collectively hereto as Exhibit "C"). 7. In his Bills of Particulars, the 47 year old Plaintiff alleges various injuries, the most significant of which is a left knee lateral meniscus tear and a partial tear of the left lateral ligament requiring a March 31, 2014 arthroscopy of the left knee in the form of a partial medial and lateral meniscectomy, synovectomy and a chondroplasty of the patellofemoraljoint. (See Exhibit "C" at ~28). 8. The Note oflssue was filed on or about July 13, A copy of the Note oflssue is annexed hereto as Exhibit "D". 9. A conference was held before this Court in which it was agreed that all motions for

3 summary judgment in this matter would be made returnable before December 2, A copy of the stipulation is annexed hereto as Exhibit "E". 10. As less than 120 days have elapsed from the filing of the Note oflssue, this motion is timely. Additionally, as required by the August 17, 2015 Stipulation, this motion is being made returnable prior to December 2, Relevant Factual History 11. In the case at bar, the Plaintiff sustained soft-tissue injuries to his left knee, but the medical records of his treating physician establish that he never suffered any restrictions, permanent or otherwise, with regard to the strength or range of motion of his knee. Nevertheless, he underwent a same-day arthroscopic procedure on March 31, 2014, which essentially eliminated any complaints he had. Plaintiff missed no time from work or school as a result of his physical injuries, and he simply has not sustained a "serious injury" within the meaning of of the Insurance Law of the State of New York. 12. Plaintiff first treated at NY Rehab Pain Management and Medical Services with Dr. David Zelefsky on September 25, (Plaintiffs NY Rehab Pain Management and Medical Services records are annexed hereto as Exhibit "H"). Examination of Plaintiffs left knee revealed normal ranges of motion. Plaintiff did not make any complaints when the left knee was palpitated. Plaintiff was deemed to possess normal muscle strength in lower extremities and normal sensations. 13. Plaintiff returned to Dr. Zelefsky on October 16, A detailed range of motion test was performed on Plaintiffs left knee once again which revealed normal ranges of motion. Despite the objective findings, Dr. Zelefsky requested a MRI of the left knee and advised the 3

4 Plaintiff to continue with physical therapy. 14. Plaintiff returned to Dr. Zelefsky on October 30, 2013, November 15, 2013, December 2, 2013, January 17,2014, February 17, 2014, February 19,2014, April11, 2014, May 23, 2014 and June 21, During these visits, Plaintiffs subjective complaints are contradicted by his own doctor's objective findings, which reveal normal ranges of motion. Despite the normal objective findings, Dr. Zelefsky continued to recommend further treatment and physical therapy. As of December 2, 2013, Plaintiff advised Dr. Zelefsky that his left wrist pain "significantly improved" and he noted the left knee did not exhibit pain on palpation or effusion. On February 14,2014, Plaintiff was deemed to have "normal" gait. Within a week following the knee surgery, Plaintiff advised that his left knee pain was mild and at a level of2/1 0. On July 21, 2014, Plaintiff admitted "approximately % improvement," and was "resuming activities, which include running as well as bicycle [sic]." 15. The Plaintiff appeared for a deposition on January 8, 2015, the transcript of which is annexed hereto as Exhibit "F". Plaintiff testified that the reason he had not returned to school was not due to physical injuries, but, rather, due to stress, for which he had not treated. (See Plaintiffs deposition, Exhibit "F" at pp ). The fact that the Plaintiff did not work from Spring of 2014 to January of 2015 was because he was not offered a "residency" as a teaching artist, not due to the accident. (See Id. at 25-27). The Plaintiff only missed a week from work as a barista in September 2013 as a result of the accident. (See Id. at 29). In fact, since the accident in September of2013, no doctors have placed restrictions on the Plaintiffs ability to work. (See Id. at 40). 16. Additionally, Plaintiff testified that there are no activities that he is unable to do as 4

5 a result of the accident. (See Id. at 144). He testified that the only thing he was limited in doing is light running rather than full running. (See I d. at ). In fact, Plaintiff told his own treating medical provider that he felt "98 to 100 percent" back to normal as a result of the physical therapy sessions following his surgery. (See Id. at 129). 17. Dr. Edward Toriello (orthopedist) examined plaintiff on June 12, (A copy of Dr. Toriello's Report is annexed hereto as Exhibit "G"). Plaintiff complained to Dr. Toriello of left knee pain "particularly when climbing stairs." (See Id. at 1). Using a goniometer to measure Plaintiffs range of motion, the examination revealed flexion ofo to 150 degrees (normal is 0 to 150 degrees). There was no evidence of erythema, ecchymosis, swelling or tenderness of the left knee. (Id. at 3). Additionally, there was no effusion or ligamentous laxity in the knee and ambulation was normal. (Id. at 3). Finally, McMurray's and Lachman's tests were determined to be normal. (Id. at 3). Dr. Toriello determined that Plaintiffhad a resolved left knee injury post arthroscopic surgery from which he had recovered. (I d. at 4 ). He also determined that the Plaintiffs prognosis was excellent and was able to return to work and engage in all activities of daily living without restriction. (See Id. at 4). 18. Based on the foregoing, it is apparent that plaintiffs alleged injuries do not satisfy the serious injury threshold mandated by N.Y. Insurance Law 5102(d) required to maintain a cause of action in a motor vehicle case. Thus, this Honorable Court must dismiss Plaintiffs complaint in its entirety. 5

6 WHEREFORE, it is respectfully requested that Defendants' motion be granted and for such other and further relief as this court deems just and proper. Dated: Hawthorne, New York October 29, 2015 TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP Attorneys for Defendants CAROL D'ANGELO and JAMES D'ANGELO By: Anthony Br~ hnt{r Mid-Westchester Executive Park Seven Skyline Drive Hawthorne, New York Tel. No.: (914) File No.: TO: MALLILO & GROSSMAN Jack Grossman, Esq Northern Boulevard Flushing, New York