Opinion
11056 Index 27279/16E
02-18-2020
Arminda REYNOSO, Plaintiff–Appellant, v. Idrissa TRADORE, Defendant–Respondent.
Goldstein & Handwerker, LLP, New York (Jason Levine of counsel), for appellant. Robert D. Grace, Brooklyn, for respondent.
Goldstein & Handwerker, LLP, New York (Jason Levine of counsel), for appellant.
Robert D. Grace, Brooklyn, for respondent.
Acosta, P.J., Kapnick, Moulton, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered May 16, 2019, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint due to plaintiff's inability to establish that her claimed cervical spine injury was a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendant satisfied her prima facie burden to show that plaintiff did not sustain a serious injury to her cervical spine by submitting the reports of her experts, including a radiologist and orthopedist, who found that plaintiff's own MRI report showed preexisting degenerative changes not causally related to the accident (see Williams v. Laura Livery Corp., 176 A.D.3d 557, 558, 112 N.Y.S.3d 16 [1st Dept. 2019] ; Rodriguez v. Konate, 161 A.D.3d 565, 566, 76 N.Y.S.3d 553 [1st Dept. 2018] ).
In opposition, plaintiff failed to raise an issue of fact. Her orthopedic surgeon offered only a conclusory opinion of causation, and a physician, who examined her recently, acknowledged generally that plaintiff may or may not have degenerative conditions, but did not address the particular conditions identified in plaintiff's own records, and offered no objective basis for concluding that those conditions were not the cause of the claimed injuries (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 536, 102 N.Y.S.3d 588 [1st Dept. 2019] ; Francis v. Nelson, 140 A.D.3d 467, 468, 33 N.Y.S.3d 244 [1st Dept. 2016] ; Farmer v. Ventkate Inc., 117 A.D.3d 562, 986 N.Y.S.2d 98 [1st Dept. 2014] ). Nor did that physician reconcile his findings of limitations in range of motion, with the surgeon's earlier finding of "full" normal range of motion within a month after the accident (see Booth v. Milstein, 146 A.D.3d 652, 653, 45 N.Y.S.3d 438 [1st Dept. 2017] ; Nicholas v. Cablevision Sys. Corp., 116 A.D.3d 567, 568, 984 N.Y.S.2d 332 [1st Dept. 2014] ).