Summary
holding plaintiffs failed to raise an issue of fact because their doctor did not explain why joint disease could not be ruled out as a cause of the plaintiffs' injuries and plaintiffs' doctor failed to provide an objective basis to support a finding of aggravation
Summary of this case from Scott v. Metrostar Cab Corp.Opinion
01-26-2017
Marilyn CATTOUSE, et al., Plaintiffs–Appellants, v. Keith SMITH, Defendant–Respondent.
Krentsel & Guzman LLP, New York (Steven E. Krentsel of counsel), for appellants. Richard T. Lau & Associates, Jericho (Christine A. Hilcken of counsel), for respondent.
Krentsel & Guzman LLP, New York (Steven E. Krentsel of counsel), for appellants.
Richard T. Lau & Associates, Jericho (Christine A. Hilcken of counsel), for respondent.
FRIEDMAN, J.P., MOSKOWITZ, WEBBER, KAHN, GESMER, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about July 7, 2015, which granted defendant's motion for summary judgment dismissing the complaint due to plaintiffs' inability to meet the serious injury threshold of Insurance Law § 5102(d), unanimously affirmed, without costs.
Plaintiffs, Marilyn Cattouse and Michael Cattouse, and their daughter Laurie Cattouse, allege that they sustained serious injuries to their cervical and lumbar spines as the result of a motor vehicle accident. Defendant established, prima facie, that plaintiffs did not sustain serious injuries by submitting the affirmed report of an orthopedist, who found normal ranges of motion, negative test results, and resolved strains/sprains (see Frias v. Son Tien Liu, 107 A.D.3d 589, 967 N.Y.S.2d 382 [1st Dept.2013] ; Dorrian v. Cantalicio, 101 A.D.3d 578, 957 N.Y.S.2d 47 [1st Dept.2012] ; Paduani v. Rodriguez, 101 A.D.3d 470, 955 N.Y.S.2d 48 [1st Dept.2012] ). Defendant also submitted the report of a radiologist who opined that the MRI films of Marilyn's lumbar spine and of Laurie's cervical spine showed preexisting degenerative conditions, not causally related to the accident (see Pommells v. Perez, 4 N.Y.3d 566, 576–577, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ). Marilyn's medical records reflect that she had preexisting arthritis in her back, and Michael acknowledged at his deposition that he suffered prior neck injuries in another motor vehicle accident. Defendant also relied on Laurie's hospital and medical records showing that she had positive neck range of motion and her back complaints resolved without intervention at the hospital (see Galarza v. J.N. Eaglet Publ. Group, Inc., 117 A.D.3d 488, 985 N.Y.S.2d 494 [1st Dept.2014] ).
In opposition, plaintiffs failed to raise an issue of fact as to whether any of them suffered a serious injury causally related to the accident. They submitted reports from an orthopedist, who examined Marilyn and Michael shortly after the accident and about two years later, and found limited ranges of motion, and opined that the bulging and herniated discs found in MRI reports were causally related to the accident. The MRI reports reflected findings of degenerative joint disease, and however, the orthopedist did not explain why that joint disease could not be ruled out as the cause of Marilyn's or Michael's injuries (Rickert v. Diaz, 112 A.D.3d 451, 452, 976 N.Y.S.2d 80 [1st Dept.2013] ), or provide any objective basis to support a finding of aggravation of such preexisting conditions (see Farmer v. Ventkate, 117 A.D.3d 562, 986 N.Y.S.2d 98 [1st Dept.2014] ; Roach v. Citywide Mobile Response Corp., 102 A.D.3d 576, 959 N.Y.S.2d 47 [1st Dept.2013] ). Absent objective evidence of injury, plaintiffs cannot demonstrate a serious injury (see Hernandez v. Cespedes, 141 A.D.3d 483, 35 N.Y.S.3d 651 [1st Dept.2016] ).
As for Laurie, plaintiffs submitted the affidavit of a chiropractor who noted that she had undergone a brief period of treatment after the accident and found that she had relatively minor limitations in range of motion, which is insufficient to sustain a serious injury claim (see Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ). He did not address the hospital and medical records showing that she had no neck limitations or back pain shortly after the accident, rendering the opinion speculative (see Jno–Baptiste v. Buckley, 82 A.D.3d 578, 919 N.Y.S.2d 22 [1st Dept.2011] ). Nor did Laurie submit her own radiologist's MRI report to rebut the findings of defendant's expert or provide a reasonable explanation for her cessation of medical treatment after a brief course of chiropractic treatment after the accident and then a year later (see Green v. Domino's Pizza, LLC, 140 A.D.3d 546, 33 N.Y.S.3d 260 [1st Dept.2016] ).