Opinion
01-24-2017
Zaida DE LA ROSA, Plaintiff–Appellant, v. Richard OKWAN, et al., Defendants–Respondents.
Mitchell Dranow, Sea Cliff, for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for respondents.
Mitchell Dranow, Sea Cliff, for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for respondents.
SWEENY, J.P., RENWICK, ANDRIAS, KAHN, GESMER, JJ.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about November 5, 2015, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants established prima facie that plaintiff did not sustain a serious injury involving a "permanent consequential" or "significant" limitation of use of her cervical or lumbar spine or right shoulder (see Insurance Law § 5102[d] ). Their orthopedist concluded, based on physical examination and review of plaintiff's medical records, that plaintiff sustained no injuries as a result of the low-speed accident (see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ; Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 920 N.Y.S.2d 24 [1st Dept.2011] ). Their orthopedic expert opined, based on plaintiff's own MRI report finding bony impingement and her surgeon's operative report finding hypertrophic synovitis in the shoulder, that plaintiff did not suffer any traumatic shoulder injury, but had a chronic condition. Defendants' expert in emergency medicine opined that the records of plaintiff's emergency room visits demonstrated that plaintiff sustained no significant injury as a result of the accident. Moreover, plaintiff's deposition testimony demonstrated that she walked home after the accident and did not seek any treatment for the following three days.
In opposition, plaintiff failed to raise an issue of fact as to any permanent consequential limitation in use of her spine, since she provided no proof of any recent findings of limitations (see Vega v. MTA Bus Co., 96 A.D.3d 506, 946 N.Y.S.2d 162 [1st Dept.2012] ; Ortiz v. Salahuddin, 102 A.D.3d 617, 618, 959 N.Y.S.2d 64 [1st Dept.2013] ). Nor did her medical evidence raise an issue of fact as to any significant limitation in use (see Vasquez v. Almanzar, 107 A.D.3d 538, 967 N.Y.S.2d 361 [1st Dept.2013] ). Plaintiff's experts' conclusory statements that her shoulder injury was caused by the accident failed to address the findings of bony impingement and large anterior spur found in her own physicians' MRI and operative reports and to explain why those conditions were not the cause of her shoulder condition (see Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 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]; Kone v. Rodriguez, 107 A.D.3d 537, 538, 967 N.Y.S.2d 359 [1st Dept.2013] ).
Plaintiff's 90/180–day claim is refuted by the allegations in her bill of particulars (see Mena v. White City Car & Limo Inc., 117 A.D.3d 441, 985 N.Y.S.2d 234 [1st Dept.2014] ). Moreover, plaintiff failed to substantiate her claimed loss of work with proof that her absences from work were medically determined (see Nicholas v. Cablevision Sys. Corp., 116 A.D.3d 567, 984 N.Y.S.2d 332 [1st Dept.2014] ).