Ashley Hall, Plaintiff–Appellant, v. Vanessa Rose Vargas et al., Defendants–Respondents. (2023)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about November 21, 2022, which granted defendants-respondents' motions for summary judgment dismissing plaintiff-appellant Ashley Hall's claims based on her inability to meet the serious injury threshold of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants satisfied their prima facie burden of showing that plaintiff Ashley Hall did not sustain a serious injury to her shoulders, cervical or lumbar spine by relying on the report of their orthopedic surgeon, who found that plaintiff had normal range of motion, her injuries had resolved, and there was no objective evidence of an orthopedic disability (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 [2019]).  Plaintiff's own medical records from treatment contemporaneous to the accident also show that she was discharged from treatment because her conditions were fully resolved.

In opposition, plaintiff failed to raise an issue of fact as to her shoulder injuries since she submitted no admissible MRI reports to show objective evidence of injury and no evidence of permanent or significant limitations in use (see Gblah v. New York City Tr. Auth., 173 A.D.3d 622, 623, 103 N.Y.S.3d 414 [1st Dept. 2019]).  As for her spinal injuries, plaintiff submitted the report of a doctor who examined her by “video consultation” and failed to explain how he determined that plaintiff had limitations in range of motion, or how his findings can be reconciled with the earlier full range-of-motion findings made by plaintiff's treating physician four months after the accident (see Colon v. Torres, 106 A.D.3d 458, 459, 965 N.Y.S.2d 90 [1st Dept. 2013];  Jno–Baptiste v. Buckley, 82 A.D.3d 578, 578–579, 919 N.Y.S.2d 22 [1st Dept. 2011]).  Based on her sworn testimony that she stopped medical treatment and her own medical records stating she was discharged because she had healed, plaintiff has failed to raise a sufficient issue of fact to defeat the motion (Alston v. Elliott, 159 A.D.3d 575, 576, 73 N.Y.S.3d 50 [1st Dept. 2018]).