RODRIGUEZ v. [And Another Action] (2024)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered July 29, 2022, which granted defendant Moss’ motion for summary judgment dismissing the complaint as against all defendants on the ground that plaintiff did not sustain a serious injury under Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendant established prima facie that plaintiff did not sustain a serious injury through the affirmed reports of his medical experts, who found no objective evidence of limitations in the claimed body parts (see Antepara v. Garcia, 194 A.D.3d 513, 148 N.Y.S.3d 451 [1st Dept. 2021];  Stickney v. Akhar, 187 A.D.3d 425, 132 N.Y.S.3d 120 [1st Dept. 2020]).  Defendant also noted factors that interrupted the chain of causation, including that, after months of treatment, plaintiff had ceased treatment completely for seven years and that she had previously injured her back in a work-related incident (see Pommells v. Perez, 4 N.Y.3d 566, 572, 576–577, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005];  Rodriguez v. 3rd Ave. Tr. Inc., 201 A.D.3d 417, 417, 156 N.Y.S.3d 727 [1st Dept. 2022]).

Contrary to plaintiff's contentions, “the mere fact that defendants’ expert did not address findings in diagnostic and operative reports indicating that plaintiff had [bulging discs] does not mean that defendants failed to meet their initial burden” (Burgess v. Avignon Taxi, LLC, 211 A.D.3d 522, 522, 181 N.Y.S.3d 39 [1st Dept. 2022] [internal quotation marks omitted]).  In any event, defendant's neurologist noted the positive findings in plaintiff's MRI but ultimately determined that plaintiff showed no objective physical limitations on examination (see e.g. Rivera v. Gonzalez, 107 A.D.3d 500, 500–501, 967 N.Y.S.2d 60 [1st Dept. 2013]).

Plaintiff, in opposition, failed to raise a triable issue of fact.  Her submissions fail to address her seven-year gap in treatment or her prior work-related injuries to the same body parts claimed in this action (see Rodriguez, 201 A.D.3d at 417, 156 N.Y.S.3d 727;  see also Zhijian Yang v. Alston, 73 A.D.3d 562, 563, 903 N.Y.S.2d 4 [1st Dept. 2010]).  This gap in treatment also renders the opinion of plaintiff's medical expert, who examined plaintiff nearly eight years after the accident, speculative as to the permanency, significance, and causation of the claimed injuries (see Pastora L. v. Diallo, 167 A.D.3d 424, 425, 88 N.Y.S.3d 185 [1st Dept. 2018];  see also Vila v. Foxglove Taxi Corp., 159 A.D.3d 431, 432, 71 N.Y.S.3d 69 [1st Dept. 2018]).  Furthermore, plaintiff returned to work three days after the accident, required no changes to her work duties, and had an unexplained 8–year gap in treatment after ceasing all conservative treatment 9 months after the accident (see e.g. Haniff v. Khan, 101 A.D.3d 643, 958 N.Y.S.2d 89 [1st Dept. 2012];  Green v. Domino's Pizza, LLC, 140 A.D.3d 546, 33 N.Y.S.3d 260 [1st Dept. 2016]).

As for plaintiff's 90/180 day claim, defendant met his burden by relying on plaintiff's own testimony that she returned to work three days after the accident and could perform all activities of daily living (Burgess, 211 A.D.3d at 522, 181 N.Y.S.3d 39).  Plaintiff failed to submit any evidence to suggest that she was seriously curtailed from performing her usual activities for 90 out of the next 180 days (see Morris v. Ilya Cab Corp., 61 A.D.3d 434, 876 N.Y.S.2d 61 [1st Dept. 2009]).