Ronda v. Friendly Baptist Church

52 A.D.3d 440, 861 N.Y.S.2d 622

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 2008
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered August 27, 2007, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants carried their initial burden of showing that plaintiff’s shoulder tendon tear and other injuries were not proximately caused by the subject accident (see Pommells v Perez, 4 NY3d 566, 574-575 [2005]), by submitting reports of plaintiffs previous line-of-duty injuries and the opinion of their examining orthopedist, based in part on the MRI report describing arthritic changes in the shoulder joint as degenerative, that the shoulder injury was among plaintiffs preexisting conditions. Plaintiff failed to meet his burden to adduce evidence rebutting the asserted lack of causation (see Knoll v Seafood Express, 5 NY3d 817 [2005]; Becerril v Sol Cab Corp., 50 AD3d 261 [2008]).

We note that neither the minor curtailment of his activities nor his need to be placed on light duty upon his return to work raised an inference that plaintiff was unable to perform his usual and customary daily activities for 90 of the first 180 days following the accident (see Insurance Law § 5102 [d]; Cartha v Quinn, 50 AD3d 530 [2008]).

We have considered plaintiffs remaining contentions and find them unavailing. Concur—Saxe, J.P., Nardelli, Moskowitz, Acosta and DeGrasse, JJ.