Alvarez v. NYLL Management Ltd.

120 A.D.3d 1043, 993 N.Y.S.2d 1

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 11, 2014
• Docket: 12702 306222/09
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered December 17, 2012, which granted defendants’ motion for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102 (d), affirmed, without costs.

Defendants made a prima facie showing that plaintiff did not sustain permanent or significant serious injuries to her right shoulder, right knee, and neck as a result of the accident by submitting the expert reports of an orthopedic surgeon and radiologist, and by relying on plaintiffs own medical records (see Paduani v Rodriguez, 101 AD3d 470, 470 [1st Dept 2012]). Defendants’ orthopedist found full range of motion in each body part, and their orthopedist and radiologist both concluded that plaintiff’s conditions were degenerative in nature. The MRI reports prepared by plaintiffs radiologists found, among other things, that the shoulder MRI showed a bone spur (or growth) causing impingement on the shoulder tendon, that the right knee MRI was “normal,” and that the cervical spine MRI showed a degenerative condition. Plaintiff’s medical records also included a physician’s examination finding full range of motion of the right knee, and the same range of motion in both shoulders shortly after the accident. Further, plaintiffs emergency room records included her acknowledgment of a history of arthritis.

In opposition, plaintiff failed to raise a triable issue of fact with respect to these alleged injuries. Her orthopedic surgeon’s conclusory opinion that plaintiff’s shoulder, knee and spine conditions were caused by the accident, and not degeneration, was insufficient to raise an issue of fact as to causation. Indeed, the surgeon failed to address or contest the detailed findings of preexisting degenerative conditions by defendants’ experts, which were acknowledged in the reports of plaintiff’s own radiologists (Paduani, 101 AD3d at 471). Moreover, the surgeon’s failure to address plaintiffs history of arthritis, or the earlier, conflicting findings by plaintiff’s other physician of normal knee range of motion and the same range of motion in both shoulders, warrants summary judgment dismissing those serious injury claims (see Santos v Perez, 107 AD3d 572, 574 [1st Dept 2013]; Jno-Baptiste v Buckley, 82 AD3d 578, 578-579 [1st Dept 2011]).

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The court properly dismissed plaintiffs 90/180-day claim, as she failed to allege in her bill of particulars that she was incapacitated for at least 90 of the first 180 days following the accident (Frias v Son Tien Liu, 107 AD3d 589, 590 [1st Dept 2013]; Batista v Porro, 110 AD3d 609, 609-610 [1st Dept 2013]).

Concur — Gonzalez, EJ., Sweeny and Freedman, JJ. Moskowitz and Kapnick, JJ., dissent in part in a memorandum

This is evident by the analysis of the motion court and a reading of the doctor’s report; an analysis not belied by the dissent’s argument to make the report authoritative where it is not.