Travis v. Batchi (Motion for leave to appeal granted on February 10, 2011) 75 A.D.3d 411 (1st Dep’t 2010)
This appeal from the First Department addresses the same issue of contemporaneous findings. The Court noted that the examination records of the plaintiff’s own treating physician/expert fatally hindered the plaintiff’s opposition to summary judgment on a “serious injury” threshold motion. The physician submitted in opposition to the summary judgment motion that provided that the plaintiff sustained a permanent injury to the knee as a result of the accident. He prepared this affirmation a few years after the accident. However, his examination records from a few weeks and a few months after the accident indicated that the plaintiff had full strength and range of motion in the knee. The plaintiff also had full strength and range of motion in the knee after a right knee anterior cruciate ligament reconstruction, partial medial and lateral meniscectomy and chondroplasty.
The Court reasoned that, absent some explanation from the physician, his negative findings cannot be reconciled with the physician’s affirmation submitted in opposition to the motion, prepared a few years after the accident, that the plaintiff sustained a permanent injury to the knee as a result of the accident.
This appeal appears to differ from Adler v. Bayer because, here, the plaintiff’s physician indicated in the medical records that the plaintiff had full range of motion weeks and months after the accident.