Opinion
131 Index No. 27829/19 Case No. 2022–03170
04-27-2023
Chrishna SOOKNANAN, et al., Plaintiffs–Appellants, v. Nelson PINALES, et al., Defendants–Respondents, Joseph Chuke, et al., Defendants.
Mischel & Horn, P.C., New York (Nicholas S. Bruno of counsel), for appellants. Baker, McEvoy & Moskovits, Brooklyn (Marjorie E. Bornes of counsel), for Nelson Pinales, respondent. Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for Steven Jean, respondent.
Mischel & Horn, P.C., New York (Nicholas S. Bruno of counsel), for appellants.
Baker, McEvoy & Moskovits, Brooklyn (Marjorie E. Bornes of counsel), for Nelson Pinales, respondent.
Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for Steven Jean, respondent.
Webber, J.P., Moulton, Scarpulla, Mendez, Rodriguez, JJ.
Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered July 7, 2022, which, to the extent appealed from as limited by the briefs, granted defendants Kasheem Moye's, Nelson Pinales's, and Steven Jean's motions for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury to his lumbar spine within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants satisfied their prima facie burden that plaintiff did not sustain a serious injury to his lumbar spine by submitting the report of their radiologist, who opined that the MRI of plaintiff's spine revealed degenerative and preexisting conditions not causally related to the accident (see Marcelo v. Fabius, 195 A.D.3d 472, 472, 149 N.Y.S.3d 70 [1st Dept. 2021] ; Antepara v. Garcia, 194 A.D.3d 513, 513, 148 N.Y.S.3d 451 [1st Dept. 2021] ). Defendants also submitted plaintiff's testimony that he had previously injured his back in another accident and that he ceased all treatment after a few months, which required some reasonable explanation (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
In opposition, plaintiff failed to raise an issue of fact. The unaffirmed MRI report was inadmissible, as it was not relied on by defendant's expert, who expressly disagreed with its findings of herniations (see Acevedo v. Grayline N.Y. Tours, Inc., 204 A.D.3d 597, 598, 167 N.Y.S.3d 490 [1st Dept. 2022] ; Hernandez v. Cespedes, 141 A.D.3d 483, 484, 35 N.Y.S.3d 651 [1st Dept. 2016] ). The report of his chiropractor was also inadmissible because there was no attestation clause, just a notary stamp (see Barry v. Arias, 94 A.D.3d 499, 500, 942 N.Y.S.2d 57 [1st Dept. 2012] ; cf. Shinn v. Catanzaro, 1 A.D.3d 195, 198 n. 1, 767 N.Y.S.2d 88 [1st Dept. 2003] ; CPLR 2106 ]). In the absence of any admissible medical evidence, plaintiff failed to raise an issue of fact ( Acevedo, 204 A.D.3d at 598, 167 N.Y.S.3d 490 ). In any event, plaintiff's MRI report revealed degenerative conditions such as osteophytes and spurring, and his chiropractor did not address or explain these preexisting conditions or explain why they could not have been the cause of his condition (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 536, 102 N.Y.S.3d 588 [1st Dept. 2019] ). Plaintiff also failed to address his cessation of treatment about two months after the subject accident until he was next examined by his chiropractor over three years later (see Alverio v. Martinez , 160 A.D.3d 454, 455, 74 N.Y.S.3d 525 [1st Dept. 2018] ). The chiropractor also did not mention plaintiff's prior accident or address whether it caused his condition, and did not provide any basis for finding aggravation of a preexisting injury (see Rodriguez v. Morel, 201 A.D.3d 606, 607, 157 N.Y.S.3d 725 [1st Dept. 2022] ).