Opinion
11-03-2016
Milton BROWN, Plaintiff–Appellant, v. Fuseomo Mohammed BAWA, et al., Defendants–Respondents.
Mitchell Dranow, Sea Cliff, for appellant. Marjorie E. Bornes, Brooklyn, for respondents.
Mitchell Dranow, Sea Cliff, for appellant.
Marjorie E. Bornes, Brooklyn, for respondents.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about July 28, 2015, which, to the extent appealed from as limited from the briefs, granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to establish that he suffered a serious injury to his left shoulder within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants established entitlement to judgment as a matter of law by showing that plaintiff did not suffer a serious injury to his left shoulder. Defendants submitted the affirmed reports of a radiologist and an orthopedist who opined that the MRI of plaintiff's left shoulder revealed a preexisting congenital condition (os acromiale), which predisposed the shoulder joint to degenerative changes, which were also depicted in the MRI (see e.g. Green v. Jones, 133 A.D.3d 472, 19 N.Y.S.3d 514 [1st Dept.2015] ; Kang v. Almanzar, 116 A.D.3d 540, 984 N.Y.S.2d 42 [1st Dept.2014] ).
In opposition, plaintiff failed to raise a triable issue of fact. As plaintiff's MRI report showed an “[u]nfused distal acromial epiphysis consistent with os acromial [sic] with rotator cuff impingement,” he was required to address that condition and explain why it was not the cause of his claimed injuries (see Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509, 999 N.Y.S.2d 37 [1st Dept.2014], affd. 25 N.Y.3d 1222, 16 N.Y.S.3d 515, 37 N.E.3d 1159 [2015] ; Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 993 N.Y.S.2d 1 [1st Dept.2014], affd. 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2015] ). Plaintiff's orthopedic surgeon opined, based on his observations and review of medical records, that the injuries were caused by the accident, but he did not rebut the opinions of defendants' experts that plaintiff's shoulder condition was related to a preexisting congenital condition (see Lee v. Lippman, 136 A.D.3d 411, 24 N.Y.S.3d 277 [1st Dept.2016] ).
FRIEDMAN, J.P., RENWICK, FEINMAN, GISCHE, KAPNICK, JJ., concur.