Opinion
10-27-2016
Germania BOBBIO, et al., Plaintiffs–Appellants, v. AMBOY BUS CO. INC., et al., Defendants–Respondents.
Mitchell Dranow, Sea Cliff, for appellants. Silverman Shin & Byrne, PLLC, New York (Michael Byrne of counsel), for respondents.
Mitchell Dranow, Sea Cliff, for appellants.
Silverman Shin & Byrne, PLLC, New York (Michael Byrne of counsel), for respondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered August 28, 2015, which granted defendants' motion for summary judgment dismissing the complaint on the threshold issue of serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants made a prima facie showing that plaintiff Germania Bobbio did not sustain a serious injury to her cervical spine as a result of the motor vehicle accident by submitting the affirmed reports of their neurologist, who found no objective neurological disability or permanency and full range of motion (see Birch v. 31 N. Blvd., Inc., 139 A.D.3d 580, 32 N.Y.S.3d 142 [1st Dept.2016] ; Mayo v. Kim, 135 A.D.3d 624, 24 N.Y.S.3d 58 [1st Dept.2016] ). Their orthopedist's finding of minor limitations in range of motion does not defeat this showing (see Stephanie N. v. Davis, 126 A.D.3d 502, 502, 5 N.Y.S.3d 412 [1st Dept.2015] ). Defendants also relied on plaintiff's deposition testimony that she had been found to be disabled as a result of a neck condition more than six years before the subject accident, thereby shifting the burden to plaintiff to demonstrate a causal connection between the accident and her claimed cervical injury (see Brewster v. FTM Servo, Corp., 44 A.D.3d 351, 844 N.Y.S.2d 5 [1st Dept.2007] ).
In opposition, plaintiff failed to raise an issue of fact as to causation or aggravation of the preexisting condition of her cervical spine. Her orthopedist acknowledged that an MRI of the cervical spine taken four years before the accident showed a preexisting condition, but he provided no objective basis, only the history supplied by plaintiff, for his opinion that the accident exacerbated the preexisting condition (see Campbell v. Fischetti, 126 A.D.3d 472, 473, 5 N.Y.S.3d 79 [1st Dept.2015] ). Plaintiff offered no evidence of any injuries different from her preexisting condition, and her orthopedist failed to explain why her preexisting conditions were ruled out as the cause of her current alleged injuries (see Garcia v. Feigelson, 130 A.D.3d 498, 13 N.Y.S.3d 417 [1st Dept.2015] ; Campbell v. Fischetti, 126 A.D.3d at 473, 5 N.Y.S.3d 79 ).
FRIEDMAN, J.P., ANDRIAS, MOSKOWITZ, GISCHE, GESMER, JJ., concur.