Opinion
06-09-2016
Sandra FRANCIS, Plaintiff–Respondent, v. Regina NELSON, et al., Defendants–Appellants.
Katz & Associates, Brooklyn (Anthony M. Grisanti of counsel), for appellants. Mark B. Rubin, P.C., Bronx (Michael A. Rubin of counsel), for respondent.
Katz & Associates, Brooklyn (Anthony M. Grisanti of counsel), for appellants.
Mark B. Rubin, P.C., Bronx (Michael A. Rubin of counsel), for respondent.
MAZZARELLI, J.P., ANDRIAS, RICHTER, MANZANET–DANIELS, KAHN, JJ.
Opinion Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about March 27, 2015, which, insofar as appealed from, upon reargument, denied defendants' motion for summary judgment dismissing the claims of serious injury resulting in “significant” or “permanent consequential limitation of use” within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
The court properly granted reargument based on plaintiff's contention that the unaffirmed CT scan reports prepared by her radiologist could be considered, because they had been referenced and relied upon by defendant's medical expert in diagnosing preexisting degenerative changes in plaintiff's cervical and lumbar spine (see Amamedi v. Archibala, 70 A.D.3d 449, 895 N.Y.S.2d 42 [1st Dept.2010], lv. denied 15 N.Y.3d 713, 2010 WL 4628589 [2010] ). However, the reports do not avail plaintiff. Although they found herniated and bulging discs, they also found “degenerative changes,” including osteophyte formations at multiple levels, and plaintiff's treating chiropractor, while acknowledging the findings of degeneration, did not adequately address those findings or explain why degeneration was not the cause of the claimed spinal injuries (see Acosta v. Traore, 136 A.D.3d 533, 24 N.Y.S.3d 652 [1st Dept.2016] ).
Defendants made a prima facie showing that all of plaintiff's other claimed injuries had resolved and that her claimed knee injury preexisted the accident. In opposition, plaintiff did not provide any medical evidence to rebut defendants' showing.