Opinion
07-06-2017
Jorge D. SANTOS, Jr., Plaintiff–Respondent, v. Shona TRAYLOR–PAGAN, Defendant–Appellant.
Katz & Associates, Brooklyn (Stephen A. Saltzman of counsel), for appellant. John C. Lévy, New York, for respondent.
Katz & Associates, Brooklyn (Stephen A. Saltzman of counsel), for appellant.
John C. Lévy, New York, for respondent.
TOM, J.P., MOSKOWITZ, GISCHE, KAPNICK, JJ.
Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered February 4, 2016, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate that he suffered a serious injury 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 accordingly.
Defendant established her entitlement to judgment as a matter of law by submitting the affirmed report of an orthopedist who found normal ranges of motion in the affected body parts i.e., the right elbow and wrist (see e.g. Torres v. Triboro Servs., Inc., 83 A.D.3d 563, 563–564, 921 N.Y.S.2d 240 [1st Dept.2011] ). Defendant was not required to submit the report of an expert neurologist as to plaintiff's claim of carpal tunnel syndrome in his right wrist, since it was not pleaded in the bill of particulars and was raised for the first time in opposition to the motion (see Boone v. Elizabeth Taxi, Inc., 120 A.D.3d 1143, 1144, 993 N.Y.S.2d 302 [1st Dept.2014] ). In any event, defendant's orthopedist found normal ranges of motion in plaintiff's right wrist and elbow, no atrophy in the muscles of the hand, and that Phalen's sign was negative (see Jacobs v. Slaght, 47 A.D.3d 679, 850 N.Y.S.2d 166 [2d Dept.2008] ; see also Kendig v. Kendig, 115 A.D.3d 438, 439, 981 N.Y.S.2d 411 [1st Dept.2014] ).
Plaintiff failed to raise a triable issue of fact as to whether his carpal tunnel syndrome was causally related to the accident ( Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ). This Court, in Rosa v. Mejia , 95 A.D.3d 402, 404, 943 N.Y.S.2d 470 (1st Dept.2012), opined that the decision in Perl did not abrogate the need for at least a qualitative assessment of injuries soon after an accident. This Court then affirmed the dismissal of a plaintiff's case where the plaintiff had presented no admissible proof that she saw any medical provider for any evaluation until 5 ½ months after her accident (id. ). Plaintiff here was treated on the date of the accident and released from the emergency room at Westchester Medical Center, where he was diagnosed with a right elbow laceration, which was treated with three sutures. He never had any further medical treatment until he first saw an orthopedist 13 ½ months after the accident, and then allegedly had a few months of physical therapy, although there are no details of any such therapy in the record. He did not see a neurologist about his carpal tunnel syndrome until almost four years after the accident (see Camilo v. Villa Livery Corp., 118 A.D.3d 586, 587, 987 N.Y.S.2d 164 [1st Dept.2014] [plaintiff's orthopedic surgeon did not examine plaintiff until approximately 15 months after the accident, which was insufficient to raise an issue of fact as to causation]; Henchy v. VAS Express Corp., 115 A.D.3d 478, 479, 981 N.Y.S.2d 418 [1st Dept.2014] [plaintiff did not receive treatment for her left knee until six months after the accident; this failure to provide contemporaneous objective evidence of injury to or limitations in the left knee was fatal to her claims]; see also Stephanie N. v. Davis, 126 A.D.3d 502, 502–503, 5 N.Y.S.3d 412 [1st Dept. 2015] ; Linton v. Gonzales, 110 A.D.3d 534, 535, 974 N.Y.S.2d 350 [1st Dept.2013] ).
Plaintiff's remaining arguments are unavailing.