Opinion
14436 Index No. 20142/19E Case No. 2021–00178
10-21-2021
Duane R. BLAKE, Plaintiff–Appellant, v. Ricardo A. SANCHEZ et al., Defendants–Respondents.
Joshua Annenberg, New York, for appellant. Robert D. Grace, Brooklyn, for Ricardo A. Sanchez, respondent. Law Offices of John Trop, Tarrytown (Eric G. Fendt of counsel), for Calvin Williams and Gardner Industries, Inc., respondents.
Joshua Annenberg, New York, for appellant.
Robert D. Grace, Brooklyn, for Ricardo A. Sanchez, respondent.
Law Offices of John Trop, Tarrytown (Eric G. Fendt of counsel), for Calvin Williams and Gardner Industries, Inc., respondents.
Acosta, P.J., Manzanet–Daniels, Kern, Oing, Kennedy, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about July 2, 2020, which, to the extent appealed from as limited by the briefs, granted defendant Ricardo A. Sanchez's motion and defendants Calvin Williams and Gardener Industries, Inc.’s cross motion for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate that he sustained a serious injury to his cervical spine within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants established prima facie that plaintiff did not sustain a serious injury to his cervical spine. Defendants submitted the report of their radiologist, who opined that the MRI of plaintiff's cervical spine revealed conditions that were degenerative and not causally related to the accident, and the report of their orthopedist, who found that plaintiff had normal range of motion (see Marcelo v. Fabius, 195 A.D.3d 472, 149 N.Y.S.3d 70 [1st Dept. 2021] ; Antepara v. Garcia, 194 A.D.3d 513, 148 N.Y.S.3d 451 [1st Dept. 2021] ).
In opposition, plaintiff failed to provide any admissible medical evidence concerning his condition contemporaneous to the accident sufficient to raise an issue of fact as to causation (see Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ; Rosa v. Mejia, 95 A.D.3d 402, 403–404, 943 N.Y.S.2d 470 [1st Dept. 2012] ). Although plaintiff's expert found range of motion limitations in plaintiff's cervical spine, he did not examine plaintiff until approximately 17 months after the accident, which is insufficient to reliably connect his current symptoms to the accident (see Jung Ung Moon v. Kumbee Ree P Some, 189 A.D.3d 628, 629–630, 139 N.Y.S.3d 24 [1st Dept. 2020] ; Camilo v. Villa Livery Corp., 118 A.D.3d 586, 587, 987 N.Y.S.2d 164 [1st Dept. 2014] ).