Opinion
16737 Index No. 27159/16E Case No. 2022–01480
11-29-2022
Brandyann ZIEHL, Plaintiff–Appellant, v. Chao Rui ZHU, et al., Defendants–Respondents.
Alpert, Slobin & Rubenstein LLP, Bronx (Morton Alpert of counsel), for appellant. Thomas Torto, New York (Jason Levine of counsel), for respondents.
Alpert, Slobin & Rubenstein LLP, Bronx (Morton Alpert of counsel), for appellant.
Thomas Torto, New York (Jason Levine of counsel), for respondents.
Webber, J.P., Friedman, Kennedy, Mendez, Shulman, JJ.
Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered on or about March 24, 2022, which granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate that she sustained a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants made a prima facie showing that plaintiff did not sustain a serious injury to her cervical spine, lumbar spine, or other claimed injured parts of her body by submitting the reports of an orthopedic surgeon and a neurologist finding normal ranges of motion, negative clinical test results, absence of any neurological disability, and resolved strains and sprains (see Antepara v. Garcia, 194 A.D.3d 513, 513, 148 N.Y.S.3d 451 [1st Dept. 2021] ; Stickney v. Akhar, 187 A.D.3d 425, 425, 132 N.Y.S.3d 120 [1st Dept. 2020] ). Defendants also made a prima facie showing that the injuries were not causally related to the accident by submitting the report of a radiologist, who, upon a review of the MRIs of plaintiff's cervical and lumbar spine, observed only disc desiccation and minimal disc bulging, and concluded that those conditions were degenerative in nature (see Antepara, 194 A.D.3d at 513, 148 N.Y.S.3d 451 ; Auquilla v. Singh, 162 A.D.3d 463, 463, 78 N.Y.S.3d 323 [1st Dept. 2018] ). Defendants further demonstrated prima facie absence of causation through plaintiff's testimony that she ceased treatment for her injuries five months after the accident (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 a triable issue of fact. The only evidence plaintiff submitted was the report of a chiropractor who examined her once shortly after the accident and again seven years later. Plaintiff's failure to provide an adequate explanation for this seven-year gap in treatment rendered speculative the chiropractor's opinion with respect to severity, permanency, and causation (see Alston v. Elliott, 159 A.D.3d 575, 576, 73 N.Y.S.3d 50 [1st Dept. 2018] ; Vila v. Foxglove Taxi Corp., 159 A.D.3d 431, 432, 71 N.Y.S.3d 69 [1st Dept. 2018] ). The absence of a reasonable explanation for what was in fact a cessation of treatment also severed the causal link between the accident and the claimed persisting injuries (see Pommells, 4 N.Y.3d at 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 ; Alverio v. Martinez, 160 A.D.3d 454, 455, 74 N.Y.S.3d 525 [1st Dept. 2018] ). Rather, the evidence showing that plaintiff returned to work days after the accident and ceased treatment within five months demonstrated that she sustained only minor injuries, and not a "significant" or "permanent consequential" limitation of use of her spine, as a result of the accident (see Alston, 159 A.D.3d at 576, 73 N.Y.S.3d 50 ; see also Gaddy v. Eyler, 79 N.Y.2d 955, 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ).
Because plaintiff submitted no medical evidence to support her claims of injury in her left hand, shoulder, leg, and hip, those claims were properly dismissed (see Vishevnik v. Bouna, 147 A.D.3d 657, 658, 48 N.Y.S.3d 93 [1st Dept. 2017] ).
We have considered plaintiff's remaining contentions and find them unavailing.