Opinion
15826-15827 Index No. 22283/16 Case Nos. 2020-04730, 2020-04732
04-28-2022
Antonio D. Capellan ACEVEDO, Plaintiff–Appellant, v. GRAYLINE NEW YORK TOURS, INC., et al., Defendants–Respondents, Reading Transportation Corp., et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Karen H. Tommer of counsel), for Grayline New York Tours, Inc. and Dennis Olivero, respondents. Gallo Vitucci Klar LLP, New York (C. Briggs Johnson of counsel), for Reading Transportation Corp. and Frankelis Ramirez, respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Karen H. Tommer of counsel), for Grayline New York Tours, Inc. and Dennis Olivero, respondents.
Gallo Vitucci Klar LLP, New York (C. Briggs Johnson of counsel), for Reading Transportation Corp. and Frankelis Ramirez, respondents.
Acosta, P.J., Manzanet–Daniels, Mazzarelli, Singh, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered July 27, 2020, which denied plaintiff's motion for summary judgment on the issue of liability and granted defendants Grayline New York Tours, Inc. and Dennis Olivero's (collectively, Grayline) motion for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate that he sustained a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs. Order, same court (Mary Ann Brigantti, J.), entered August 13, 2020, which granted defendants Reading Transportation Corp. and Frankelis Ramirez's (collectively, Reading Transportation) motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Grayline demonstrated prima facie that plaintiff did not sustain a serious injury to his cervical spine or lumbar spine by relying on the report of their orthopedic surgeon who reviewed the MRI films of those body parts and found that they showed only mild preexisting degenerative changes to the discs, not causally related to the accident (see Gordon v. Hernandez, 181 A.D.3d 424, 425, 121 N.Y.S.3d 233 [1st Dept. 2020] ; see also Reyes–Mendez v. City of New York, 192 A.D.3d 464, 465, 139 N.Y.S.3d 818 [1st Dept. 2021] ; Grate v. Rodrigues, 179 A.D.3d 440, 441, 117 N.Y.S.3d 32 [1st Dept. 2020] ). Grayline also satisfied their burden based on the opinion of their orthopedic surgeon and neurologist that plaintiff had a normal neurological examination with no objective evidence of any injury or disability causally related to the accident (see Dellino v. Puello, 189 A.D.3d 430, 431, 137 N.Y.S.3d 19 [1st Dept. 2020] ). As to plaintiff's claimed injuries to his elbows, wrists and hands, Grayline's orthopedist found, based on his examination and plaintiff's own medical records, that plaintiff did not sustain a serious injury to those body parts causally related to the accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350–353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ).
In opposition, plaintiff failed to raise an issue of fact, as he did not submit any admissible objective evidence of injury to any of the claimed body parts to rebut the opinion of defendant's orthopedist (see Hernandez v. Cespedes, 141 A.D.3d 483, 484, 35 N.Y.S.3d 651 [1st Dept. 2016] ; Malupa v. Oppong, 106 A.D.3d 538, 539, 966 N.Y.S.2d 9 [1st Dept. 2013] ). Plaintiff's MRI reports do not become admissible merely because defendants' experts reviewed them, and plaintiff cannot rely on the affirmed report of his physician to "bootstrap" the missing MRI reports into evidence ( Malupa v. Oppong, 106 A.D.3d at 539, 966 N.Y.S.2d 9 [internal quotation marks and brackets omitted]; see Walker v. Whitney, 132 A.D.3d 478, 478, 18 N.Y.S.3d 27 [1st Dept. 2015] ). The report of plaintiff's physician set forth the results of a recent examination but did not provide the results of any examination conducted within the months after the accident or explain plaintiff's lack of any treatment for four years, rendering his opinion as to causation of plaintiff's current limitations in range of motion speculative (see Black v. Gordon, 172 A.D.3d 580, 581, 101 N.Y.S.3d 310 [1st Dept. 2019] ; Vila v. Foxglove Taxi Corp, 159 A.D.3d 431, 431–432, 71 N.Y.S.3d 69 [1st Dept. 2018] ).
Plaintiff failed to raise an issue of fact as to the 90/180-day claim in the absence of a causal connection between his claimed conditions and the subject accident and of any medical determination that he could not work during the relevant period (see Dellino, 189 A.D.3d at 431, 137 N.Y.S.3d 19 ; Diakite v. PSAJA Corp., 173 A.D.3d 535, 536, 102 N.Y.S.3d 588 [1st Dept. 2019] ).
Reading Transportation were also entitled to summary judgment, because "if [a] plaintiff cannot meet the threshold for serious injury against one defendant, [he or] she cannot meet it against the other" ( Boateng v. Calle, 105 A.D.3d 541, 542, 964 N.Y.S.2d 95 [1st Dept. 2013] [internal quotation marks omitted]).