NEWELL v. Tina D. Bronston, Defendant. (2023)

Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered on or about May 10, 2022, which granted defendant Jose A. Javier's motion for summary judgment dismissing the complaint based on plaintiff's inability to meet the serious injury threshold under Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendant made a prima facie showing that plaintiff did not sustain a serious injury to his right shoulder, cervical spine, and lumbar spine by submitting the affirmed reports of his experts, who found that plaintiff had normal range of motion and that his alleged injuries had resolved (see Stickney v. Akhar, 187 A.D.3d 425, 425, 132 N.Y.S.3d 120 [1st Dept. 2020];  Diakite v. PSAJA Corp., 173 A.D.3d 535, 536, 102 N.Y.S.3d 588 [1st Dept. 2019]).

In opposition, plaintiff failed to raise an issue of fact.  Although plaintiff's expert opined that plaintiff remained injured as a result of the accident, he failed to address plaintiff's prior injuries to the claimed body parts, a previous accident less than two weeks earlier—which plaintiff failed to disclose at his September 2016 deposition—or why those injuries were different from those claimed as a result of the subject accident (see Antepara v. Garcia, 194 A.D.3d 513, 514, 148 N.Y.S.3d 451 [1st Dept. 2021];  Bogle v. Paredes, 170 A.D.3d 455, 455, 95 N.Y.S.3d 193 [1st Dept. 2019];  compare Hamilton v. Marom, 178 A.D.3d 424, 425, 111 N.Y.S.3d 177 [1st Dept. 2019] [“plaintiff raised a triable issue of fact through the reports of his [experts] ․ who acknowledged the prior injury and surgery, and opined that there was a causal relationship between plaintiff's current ․ injuries and the accident”).

Plaintiff's allegation in his bill of particulars that he was confined to home and bed for two months after the accident, and his testimony that this period was “maybe a couple weeks,” defeats his 90/180-day claim (see Antepara, 194 A.D.3d at 514, 148 N.Y.S.3d 451;  Tejada v. LKQ Hunts Point Parts, 166 A.D.3d 436, 437–438, 88 N.Y.S.3d 156 [1st Dept. 2018];  Streeter v. Stanley, 128 A.D.3d 477, 478, 10 N.Y.S.3d 11 [1st Dept. 2015]).