Opinion
12182 Index No. 301290/16 Case No. 2019-04969
10-27-2020
Gabriela TUSU, Plaintiff–Respondent, v. Robert J. LEONE, Defendant–Appellant.
Votto & Albee, LLP, Staten Island (Christopher Albee of counsel), for appellant. Segal & Lax, LLP, New York (Patrick D. Gatti of counsel), for respondent.
Votto & Albee, LLP, Staten Island (Christopher Albee of counsel), for appellant.
Segal & Lax, LLP, New York (Patrick D. Gatti of counsel), for respondent.
Kapnick, J.P., Webber, González, Shulman, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about August 29, 2019, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the claims of serious injury in the form of "significant" and "permanent consequential" limitation of use of the cervical and lumbar spine ( Insurance Law § 5102[d] ), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
Defendant established prima facie that plaintiff did not sustain a "significant" or "permanent consequential" limitation of use of any body part as a result of the accidental collision between his vehicle and her bicycle by submitting an affirmed report by his expert, who found no objective evidence of injury upon examination and opined that plaintiff's sprains, strains and contusions had fully resolved (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 102 N.Y.S.3d 588 [1st Dept. 2019] ; Moreira v. Mahabir, 158 A.D.3d 518, 71 N.Y.S.3d 38 [1st Dept. 2018] ). The expert noted that plaintiff showed limitations in range of motion of the cervical and lumbar spine, but found that these were merely subjective and unsupported by any other objective physical findings (see Moreira, 158 A.D.3d at 518, 71 N.Y.S.3d 38 ; see also Cattouse v. Smith, 146 A.D.3d 670, 45 N.Y.S.3d 453 [1st Dept. 2017] ; Rosa v. Mejia, 95 A.D.3d 402, 403, 943 N.Y.S.2d 470 [1st Dept. 2012] ). Defendant also submitted plaintiff's testimony that she returned to work immediately after the accident and had little treatment in the following months, which indicates no causally related injury and only minor complaints that do not constitute serious injury (see Jones v. MTA Bus Co., 123 A.D.3d 614, 999 N.Y.S.2d 68 [1st Dept. 2014] ; Rosa, 95 A.D.3d at 403, 943 N.Y.S.2d 470 ). In addition, he submitted her testimony that she had previous injuries to lower back, which she was required to address (see Pommells v. Perez, 4 N.Y.3d 566, 579–580, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
Plaintiff submitted insufficient medical evidence to raise an issue of fact as to her claimed spinal injuries. The only evidence she submitted was a report by her pain management specialist, who first treated her more than a year after the accident; she submitted no records showing contemporaneous treatment and evaluation, the earliest referenced treatment being five months after the accident (see Jones 123 A.D.3d at 615, 999 N.Y.S.2d 68 ; Shu Chi Lam v. Wang Dong, 84 A.D.3d 515, 922 N.Y.S.2d 381 [1st Dept. 2011] ; see also Lopez v. Simpson, 39 A.D.3d 420, 421, 835 N.Y.S.2d 98 [1st Dept. 2007] ). Furthermore, plaintiff testified that she had sought treatment for lumbar spine injuries in 2004 but failed to report this to her medical expert, whose conclusion that her lumbar spine injury was caused by the accident is therefore speculative (see Montgomery v. Pena, 19 A.D.3d 288, 290, 798 N.Y.S.2d 17 [1st Dept. 2005] ).
Contrary to plaintiff's contention, the court providently exercised its discretion in declining to deny defendant's motion on the grounds of untimeliness, as it was aware of and directed continuing discovery as to plaintiff's prior injuries (see M.H. v. Bed Bath & Beyond Inc., 156 A.D.3d 33, 39, 64 N.Y.S.3d 205 [1st Dept. 2017] ).