Opinion
13303 Index No. 20908/14 Case No. 2020-01893
03-09-2021
Natalie CORTEZ, Plaintiff–Appellant, v. Donald R. BRAY, Defendant–Respondent.
Mischel & Horn, P.C., New York ( Scott T. Horn of counsel), for appellant. James G. Bilello & Associates, Hicksville (Alina Vengerov of counsel), for respondent.
Mischel & Horn, P.C., New York ( Scott T. Horn of counsel), for appellant.
James G. Bilello & Associates, Hicksville (Alina Vengerov of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Kennedy, Shulman, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered March 3, 2020, which granted defendant's motion for summary judgment dismissing the complaint based on plaintiff's inability to meet the serious injury threshold of Insurance Law § 5102(d), unanimously affirmed, without costs.
Plaintiff alleges that she sustained serious injuries, including lumbar strain, as the result of a car accident that occurred in 2011. Defendant met his prima facie burden of showing that plaintiff did not sustain a serious injury, through the report of his medical expert who found that plaintiff had no limitations in range of motion or other positive findings upon examination, and noted that plaintiff's medical records included "unremarkable" reports of X-ray and MRI tests performed shortly after the accident ( see Haniff v. Khan, 101 A.D.3d 643, 643, 958 N.Y.S.2d 89 [1st Dept. 2012] ). Through plaintiff's deposition testimony, defendant also showed that plaintiff ceased treatment within four months of the accident ( see Pommells v. Perez, 4 N.Y.3d 566, 576, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
In opposition, plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury to her lumbar spine. Plaintiff submitted unaffirmed medical records which are inadmissible, with the exception of the MRI and X-ray reports as their results were relied upon by defendant's medical expert ( see e.g. Clemmer v. Drah Cab Corp., 74 A.D.3d 660, 661–662, 905 N.Y.S.2d 31 [1st Dept. 2010] ; see also Rosa v. Mejia, 95 A.D.3d 402, 404, 943 N.Y.S.2d 470 [1st Dept. 2012] ). Those records support defendant's position that there is no objective evidence of a lumbar injury ( see Diaz v. Almodovar, 147 A.D.3d 654, 654, 47 N.Y.S.3d 321 [1st Dept. 2017] ). Plaintiff's medical expert examined her on one occasion eight years after the accident, so his findings, unsupported by any other evidence of injury causally related to the accident, are too remote to establish causation ( see Bogle v. Paredes, 170 A.D.3d 455, 455, 95 N.Y.S.3d 193 [1st Dept. 2019] ; Shu Chi Lam v. Wang Dong, 84 A.D.3d 515, 515, 922 N.Y.S.2d 381 [1st Dept. 2011] ). Nor did plaintiff provide an adequate explanation for her cessation of treatment four months after her accident ( see Alverio v. Martinez, 160 A.D.3d 454, 455, 74 N.Y.S.3d 525 [1st Dept. 2018] ).