Opinion
07-06-2017
Willi F. SANTOS, et al., Plaintiffs, Candida Garcia Mota, Plaintiff–Respondent, v. Benjamin A. MANGA, et al., Defendants–Appellants.
Marjorie E. Bornes, Brooklyn, for appellants.
Marjorie E. Bornes, Brooklyn, for appellants.
TOM, J.P., RICHTER, MANZANET–DANIELS, MAZZARELLI, GISCHE, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered May 12, 2016, which, to the extent appealed from as limited by the brief, denied defendants' motion for summary judgment dismissing plaintiff Candida Garcia Mota's claims of serious injuries in the "permanent consequential" and "significant" limitation of use categories of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, the motion granted, and plaintiff Mota's claims dismissed in their entirety. The Clerk is directed to enter judgment accordingly.
Defendants made a prima facie showing that the 71–year–old plaintiff had preexisting degenerative conditions in her right shoulder, lumbar spine and cervical spine, which were reflected in her own MRI reports (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] ). Since plaintiff submitted no medical evidence to refute defendants' initial showing as to those body parts, defendants' motion to dismiss those claims should have been granted (see Green v. Domino's Pizza, LLC, 140 A.D.3d 546, 33 N.Y.S.3d 260 [1st Dept.2016] ).
As to plaintiff's claimed right knee injury, defendants' radiologist opined that the MRI films showed preexisting degenerative joint disease, and their orthopedist found full range of motion and opined that the post-operative diagnoses noted by plaintiff's orthopedic surgeon in his operative report were all consistent with an arthritic knee, not trauma. In opposition, plaintiff submitted only the affirmed report of a doctor who examined her the day after the accident, which was insufficient to demonstrate "significant" or "permanent consequential" limitations in range of motion. Plaintiff also failed to submit admissible medical evidence to rebut the opinions of defendants' experts that she had an arthritic knee (see Rickert v. Diaz, 112 A.D.3d 451, 976 N.Y.S.2d 80 [1st Dept.2013] ).