Pines v. Lopez

88 A.D.3d 545, 931 N.Y.2d 578

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2011
• Status: Published

Opinion

Defendant established prima facie entitlement to judgment as a matter of law on plaintiffs claims of permanent and significant limitations. Defendants submitted, inter alia, the affirmed reports of an expert orthopedist, who, after reviewing plaintiffs medical records and examining him, found no limitations in the range of motion of plaintiffs knees and opined that plaintiffs injuries were the result of severe degenerative arthritis in both knees.

In opposition, plaintiff did not raise a triable issue of fact. He failed to present admissible evidence of contemporaneous range of motion limitations following the accident (see Batts v Medical Express Ambulance Corp., 49 AD3d 294 [2008]). The medical records of plaintiff’s orthopedic surgeon also documented that plaintiff previously had been diagnosed with degenerative arthritis in his knees and that the eventual need for a total knee replacement had been anticipated for several years prior to the subject accident. Furthermore, plaintiffs medical expert failed to address two prior accidents in which plaintiff had injured his knees, or to “address how plaintiffs current medical problems, in light of [his] past medical history, are causally related to the subject accident” (Style v Joseph, 32 AD3d 212, 214 [2006]; see Zhijian Yang v Alston, 73 AD3d 562, 563 [2010]). Concur — Saxe, J.P., Friedman, Moskowitz, Freedman and Richter, JJ.