Farmer v. Ventkate Inc.

117 A.D.3d 562, 986 N.Y.S.2d 98

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 2014
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered November 27, 2012, which, to the extent appealed from as limited by the briefs, granted defendant Ventkate Inc.’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that he was struck by defendant’s taxi, resulting in injuries to his right knee that required surgery. Defendant established prima facie that plaintiff did not sustain a serious injury causally related to the accident, by submitting the affirmed reports of an orthopedist, who concluded that plaintiff had preexisting osteoarthritis for which he required arthroplasty, unrelated to the accident, and a radiologist, who opined that the post-accident X rays showed severe osteoarthritis and no evidence of traumatic injury (see Batista v Porro, 110 AD3d 609 [1st Dept 2013]; Paduani v Rodriguez, 101 AD3d 470, 471 [1st Dept 2012]).

In opposition, plaintiff failed to raise an issue of fact as to causation or aggravation of the preexisting arthritic condition of his right knee. His orthopedic surgeon concurred that the X rays showed advanced degenerative changes, including complete loss of joint space, and diagnosed him with right knee osteoarthritis before and after surgery. In light of these findings, he provided “no objective basis or reason, other than the history provided by plaintiff,” in support of his belief that the accident “likely” exacerbated plaintiffs preexisting condition (Shu Chi Lam v Wang Dong, 84 AD3d 515, 516 [1st Dept 2011]; see Suarez v Abe, 4 AD3d 288, 289 [1st Dept 2004]). Moreover, plaintiff offered no evidence of any injuries different from his undisputed preexisting arthritic condition, and his surgeon “failed to otherwise explain why those preexisting conditions were ruled out as the cause of his current alleged limitations” (Kamara v Ajlan, 107 AD3d 575, 576 [1st Dept 2013]; Brand v Evangelista, 103 AD3d 539, 540 [1st Dept 2013]).

Concur— Gonzalez, EJ., Friedman, Moskowitz, Freedman and Kapnick, JJ.