Opinion
10860 10860A Index 22789/16E
01-23-2020
Alison BIANCHI, Plaintiff–Appellant, v. Richard MASON, et al., Defendants–Respondents.
Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville (Michael E. Bergman of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondents.
Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville (Michael E. Bergman of counsel), for appellant.
Marjorie E. Bornes, Brooklyn, for respondents.
Gische, J.P., Mazzarelli, Webber, Gesmer, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered October 30, 2018, which granted defendants' motion for summary judgment dismissing the complaint for failure to meet the serious injury threshold of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to the claim of significant limitation of use of the cervical spine, and otherwise affirmed, without costs. Order, same court and Justice, entered April 11, 2019, to the extent it denied plaintiff's motion for leave to renew with respect to the gap in treatment, unanimously affirmed, without costs.
Defendants established prima facie that plaintiff did not suffer a serious injury to her cervical spine or left hip through the opinions of their orthopedic surgeon and neurologist that she had normal range of motion and her claimed injuries had resolved (see e.g. Cattouse v. Smith, 146 A.D.3d 670, 45 N.Y.S.3d 453 [1st Dept. 2017] ). The orthopedist's findings of minor limitations did not defeat defendants' initial showing that plaintiff did not have either significant or permanent limitation in the use of her cervical spine (see Alverio v. Martinez, 160 A.D.3d 454, 454, 74 N.Y.S.3d 525 [1st Dept. 2018] ). Defendants also established prima facie that plaintiff's claimed injuries were not causally related to the subject accident through the affirmation of their radiologist, who found only degenerative conditions, and no bulging or herniated discs, in the MRIs (see e.g. Blake v. Cadet, 175 A.D.3d 1199, 1199–1200, 109 N.Y.S.3d 266 [1st Dept. 2019] ). Moreover, defendants identified a gap in plaintiff's treatment, thus shifting the burden to plaintiff to "offer some reasonable explanation" for the cessation of her treatment ( Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
In opposition, plaintiff raised an issue of fact as to her claim of "significant" limitation of use of her cervical spine (see Arias v. Martinez, 176 A.D.3d 548, 549, 112 N.Y.S.3d 18 [1st Dept. 2019] ; Blake, 175 A.D.3d at 1200, 109 N.Y.S.3d 266 ; Tejada v. LKQ Hunts Point Parts, 166 A.D.3d 436, 437, 88 N.Y.S.3d 156 [1st Dept. 2018] ). She submitted her radiologist's affirmed MRI report, which found bulging and herniated discs, as well as her treating physicians' records documenting limitations in range of motion shortly after the accident, nine months later, and recently, which they causally related to the accident. Given plaintiff's relatively young age at the time of the accident, and the lack of any evidence of prior treatment or symptoms in her own medical records, these opinions were sufficient to raise an issue of fact as to causation (see Blake, 175 A.D.3d at 1200, 109 N.Y.S.3d 266 ; Fathi v. Sodhi, 146 A.D.3d 445, 446, 44 N.Y.S.3d 406 [1st Dept. 2017] ). However, since plaintiff offered no explanation for the 16–month gap in her treatment beginning more than a year after the accident, she failed to raise an issue of fact as to whether she sustained a cervical spine injury in the "permanent consequential" limitation of use category (see Blake, 175 A.D.3d at 1200, 109 N.Y.S.3d 266 ; Holmes v. Brini Tr. Inc., 123 A.D.3d 628, 628–629, 1 N.Y.S.3d 27 [1st Dept. 2014] ).
Plaintiff failed to raise an issue of fact as to any serious injury to her left hip, since her own medical records indicated that she had full range of motion in the hip within four months after the accident (see Heywood v. New York City Tr. Auth., 164 A.D.3d 1181, 84 N.Y.S.3d 139 [1st Dept. 2018], lv denied 32 N.Y.3d 913, 2019 WL 191908 [2019] ). Moreover, she failed to submit any medical evidence to dispute the opinion of defendants' radiologist that tendinosis, a condition noted in plaintiff's own MRI report, is a degenerative condition unrelated to the accident (see Paduani v. Rodriguez, 101 A.D.3d 470, 471, 955 N.Y.S.2d 48 [1st Dept. 2012] ). Since plaintiff did not raise an issue of fact as to causation with respect to her left hip injury, she cannot recover for that injury, regardless of whether a jury finds that her cervical spine injury constitutes a serious injury ( Taylor v. Delgado, 154 A.D.3d 620, 621, 63 N.Y.S.3d 366 [1st Dept. 2017] ).
Plaintiff's 90/180–day claim was correctly dismissed based on her deposition testimony that she was not confined to bed or home, and did not miss more than five days of work, as a result of the accident (see Pouchie v. Pichardo, 173 A.D.3d 643, 645, 105 N.Y.S.3d 410 [1st Dept. 2019] ; see also Rosa–Diaz v. Maria Auto Corp., 79 A.D.3d 463, 464, 913 N.Y.S.2d 51 [1st Dept. 2010] ).
The court correctly denied plaintiff's motion for leave to renew with respect to the gap-in-treatment issue, because her "new facts" would not change the prior determination, and she failed to provide reasonable justification for failing to present those facts on the prior motion ( CPLR 2221[e][2], [3] ).