Moore v. Almanzar

103 A.D.3d 415, 959 N.Y.S.2d 180

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 2013
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered January 17, 2012, which, to the extent appealed from, granted defendants’ motion for summary judgment dismissing the claims of serious injury under the permanent and significant limitation categories of Insurance Law § 5102 (d), unanimously affirmed, without costs.

Defendants established prima facie that the injuries that plaintiff allegedly sustained to her cervical and lumbar spine, shoulders, and knees were not caused by the motor vehicle accident. They submitted evidence that plaintiff suffered neck and lower back injuries in an earlier accident, and reports by a radiologist and an orthopedist opining that the MRI films of the allegedly injured body parts revealed a chronic preexisting condition and no radiographic evidence of trauma or causally related injury (see Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [1st Dept 2011]).

Plaintiff failed to raise an issue of fact in opposition. The limitations found by her expert regarding plaintiffs left shoulder were too minor to be deemed “significant” within the meaning of Insurance Law § 5102 (d) (see Phillips v Tolnep Limo Inc., 99 AD3d 534 [1st Dept 2012]). Plaintiffs orthopedic expert noted that defendants’ expert found degeneration in her right shoulder on the MRI, which plaintiff’s radiologist confirmed, but failed to address these findings. Plaintiff submitted no recent quantifications of range-of-motion restrictions in her spine or knees (see Vega v MTA Bus Co., 96 AD3d 506 [1st Dept 2012]), and failed to address the evidence that her neck, back and knee injuries were preexisting conditions. Concur—Friedman, J.P, DeGrasse, Richter, Abdus-Salaam and Feinman, JJ.