Francis v. Nelson

140 A.D.3d 467, 33 N.Y.S.3d 244

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 2016
• Docket: 1243
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about March 27, 2015, which, insofar as appealed from, upon reargument, denied defendants’ motion for summary judgment dismissing the claims of serious injury resulting in “significant” or “permanent consequential limitation of use” within the meaning of 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.

The court properly granted reargument based on plaintiff’s contention that the unaffirmed CT scan reports prepared by her radiologist could be considered, because they had been referenced and relied upon by defendant’s medical expert in diagnosing preexisting degenerative changes in plaintiff’s cervical and lumbar spine (see Amamedi v Archibala, 70 AD3d 449 [1st Dept 2010], lv denied 15 NY3d 713 [2010]). However, the reports do not avail plaintiff. Although they found herniated and bulging discs, they also found “degenerative changes,” including osteophyte formations at multiple levels, and plaintiffs treating chiropractor, while acknowledging the findings of degeneration, did not adequately address those findings or explain why degeneration was not the cause of the claimed spinal injuries (see Acosta v Traore, 136 AD3d 533 [1st Dept 2016]).

Defendants made a prima facie showing that all of plaintiffs other claimed injuries had resolved and that her claimed knee injury preexisted the accident. In opposition, plaintiff did not provide any medical evidence to rebut defendants’ showing.

Concur — -Mazzarelli, J.P., Andrias, Richter, Manzanet-Daniels and Kahn, JJ.