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finding that plaintiff failed to raise a triable issue of fact, despite having submitted medical evidence regarding her recent physical limitations and MRI findings, because plaintiff's experts did not address a previous medical report relating to a prior accident noting plaintiff's worsening pain
Summary of this case from Wirt v. United StatesOpinion
2012-12-13
Martine MARCELLUS, Plaintiff–Appellant, v. James M. FORVARP, et al., Defendants–Respondents, Julio V. Delgado, et al., Defendants.
David M. Peterson, P.C., New York (Susan R. Nudelman of counsel), for appellant. Hodges Walsh & Slater LLP, White Plains (Paul E. Svensson of counsel), for James M. Forvarp, respondent.
David M. Peterson, P.C., New York (Susan R. Nudelman of counsel), for appellant. Hodges Walsh & Slater LLP, White Plains (Paul E. Svensson of counsel), for James M. Forvarp, respondent.
Burke, Gordon & Conway, White Plains (Ashley E. Sproat of counsel), for Dan M. Voic, respondent.
GONZALEZ, P.J., MAZZARELLI, ACOSTA, ROMÁN, JJ.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered February 4, 2011, which, in an action for personal injuries sustained in an automobile accident, granted defendants' motions for summary judgment dismissing the complaint, and order, same court and Justice, entered February 1, 2012, which, to the extent appealable, denied plaintiff's motion to renew, unanimously affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law by showing that the injuries plaintiff sustained to her right shoulder were not serious within the meaning of Insurance Law § 5102(d). Defendants submitted evidence showing that plaintiff had previously injured her right shoulder in a 2004 accident, including her surgeon's operative report and an MRI report finding degenerative changes in the shoulder, and the affirmed report of their orthopedic expert who found full range of motion and opined that any right shoulder injury had fully resolved post-operatively ( see McArthur v. Act Limo, Inc., 93 A.D.3d 567, 940 N.Y.S.2d 616 [1st Dept. 2012] ).
In opposition, plaintiff failed to raise a triable issue of fact. Although plaintiff submitted medical evidence of recent limitations and MRI findings of right shoulder injuries, she failed to show such injuries were caused by the 2008 accident. In concludingthat the shoulder injuries were causally related to the accident, her experts did not address a December 2005 medical report, prepared in association with the 2004 accident, noting plaintiff's complaints of worsening right shoulder pain and finding of shoulder impingement ( see Zhijian Yang v. Alston, 73 A.D.3d 562, 563, 903 N.Y.S.2d 4 [1st Dept. 2010] ). Nor has plaintiff submitted any evidence explaining the effect of such prior injuries on the injuries attributable to the subject 2008 accident ( see Mitrotti v. Elia, 91 A.D.3d 449, 936 N.Y.S.2d 42 [1st Dept. 2012] ). While plaintiff's experts concluded that the accident was the competent cause of the superior labrum anterior position tear observed by plaintiff's surgeon during her shoulder surgery, they did not address the surgeon's opinion that such tear was degenerative in nature ( Williams v. Horman, 95 A.D.3d 650, 944 N.Y.S.2d 135 [1st Dept. 2012];compare Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ). Plaintiff also did not address a September 2009 MRI report concluding that abnormalities observed in the shoulder were degenerative in nature.
Dismissal of the 90/180–day claim was warranted in light of plaintiff's bill of particulars and deposition testimony wherein she alleged that she was confined to home for several days, and missed just four days of work after the accident ( see Cruz v. Rivera, 94 A.D.3d 576, 942 N.Y.S.2d 91 [1st Dept. 2012] ).
The court properly denied leave to renew since plaintiff's new evidence of contemporaneous limitations did not address the causation issue, and thus would be insufficient to defeat summary judgment.