Opinion
6766 Index 302213/14
06-05-2018
Angel O. SOSA–SANCHEZ, Plaintiff–Appellant, v. Rolando REYES, et al., Defendants–Respondents
Mark E. Weinberger, P.C., Rockville Centre (Eric M. Parchment of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for respondents.
Mark E. Weinberger, P.C., Rockville Centre (Eric M. Parchment of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for respondents.
Friedman, J.P., Sweeny, Gische, Mazzarelli, Gesmer, JJ.
Order, Supreme Court, Bronx County (Armando Montano, J.), entered on or about May 4, 2017, which granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to meet the serious injury threshold within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants met their initial burden by submitting the affirmed reports of a neurologist, an emergency medicine specialist, and a radiologist. Defendants' neurologist found full range of motion in plaintiff's spine and normal results on diagnostic tests, and opined that plaintiff's alleged injuries had resolved ( Frias v. Son Tien Liu, 107 A.D.3d 589, 967 N.Y.S.2d 382 [1st Dept. 2013] ). Defendants' expert in emergency medicine opined that the records of plaintiff's emergency room visit demonstrated that any claimed injuries could not be causally related to the subject accident, and defendants' radiological expert opined that plaintiff's spinal conditions, including osteophytes and bony overgrowth, were degenerative in nature, and unrelated to the accident (see Khanfour v. Nayem, 148 A.D.3d 426, 426–427, 49 N.Y.S.3d 394 [1st Dept. 2017] ).
In opposition, plaintiff failed to raise an issue of fact. Plaintiff submitted his own unaffirmed MRI reports, which showed bulging and herniated discs, but also documented degenerative conditions such as bony ridge and spur formations and loss of disc hydration. Plaintiff's physician provided only a conclusory opinion that plaintiff's injuries were caused by the accident, without addressing the preexisting and degenerative conditions documented in plaintiff's own MRIs or explaining why plaintiff's current reported symptoms were not related to the preexisting conditions (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] ; De La Rosa v. Okwan, 146 A.D.3d 644, 45 N.Y.S.3d 443 [1st Dept. 2017], lv denied 29 N.Y.3d 908, 2017 WL 2367334 [2017] ).
Defendants' initial demonstration that plaintiff's conditions were not causally related to the accident also met their prima facie burden on plaintiff's 90/180–day claim (see Paulling v. City Car & Limousine Servs., Inc., 155 A.D.3d 481, 482, 65 N.Y.S.3d 19 [1st Dept. 2017] ; and see Simpson v. Montag, 81 A.D.3d 547, 548, 917 N.Y.S.2d 181 [1st Dept. 2011] ). In opposition, plaintiff's expert failed to raise an issue of fact as to causation (see Barry v. Arias, 94 A.D.3d 499, 500, 942 N.Y.S.2d 57 [1st Dept. 2012] ).