PEREZ v. AHADZI (2024)

Order, Supreme Court, New York County (James G. Clynes, J.), entered January 18, 2023, which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendant sustained his prima facie burden of showing that there was no causal nexus between plaintiff's injuries and the March 2017 motor vehicle accident (see Henchy v. VAS Exp. Corp., 115 A.D.3d 478, 981 N.Y.S.2d 418 [1st Dept. 2014]).  Defendant relied on a radiologist's report opining that the positive findings seen in the MRIs of plaintiff's cervical and thoracic spine were chronic, degenerative, and pre-existing, and therefore not caused by the accident (see Rickert v. Diaz, 112 A.D.3d 451, 976 N.Y.S.2d 80 [1st Dept. 2013]).  The radiologist also opined that the MRI of plaintiff's left shoulder was unremarkable.  In addition, defendant submitted the affirmed report of an orthopedic surgeon, who examined plaintiff and found normal range of motion, with no evidence of tenderness to palpation, swelling, or effusion on examination of the cervical spine, thoracic spine, left shoulder, and left wrist (see Chawdhury v. 3511 Sys. Inc., 193 A.D.3d 541, 541, 146 N.Y.S.3d 618 [1st Dept. 2021]).  We reject plaintiff's contention that defendant's orthopedic expert was required to review plaintiff's medical records before forming his opinion (see Latus v. Ishtarq, 159 A.D.3d 433, 433, 71 N.Y.S.3d 67 [1st Dept. 2018]).

The evidence submitted by plaintiff in opposition to the motion, consisting mostly of unaffirmed medical records, failed to raise a triable issue of fact with respect to the claimed injuries (see Vishevnik v. Bouna, 147 A.D.3d 657, 658, 48 N.Y.S.3d 93 [1st Dept. 2017]).  The opinion of plaintiff's doctor regarding the permanency of his injuries is speculative in light of the three-a-half-year gap in treatment between the doctor's examination of plaintiff in October 2017 and her examination of plaintiff in April 2021 (see Alverio v. Martinez, 160 A.D.3d 454, 455, 74 N.Y.S.3d 525 [1st Dept. 2018]).  In addition, plaintiff's prompt return to his job as a doorman after the accident and minimal treatment for about six months after the accident demonstrates that any injuries were minor in nature (see Latus, 159 A.D.3d at 434, 71 N.Y.S.3d 67;  see also Cruz v. Lugo, 67 A.D.3d 495, 496, 889 N.Y.S.2d 560 [1st Dept. 2009]).

Supreme Court was not required to consider plaintiff's contention that he suffered a lumbar spine injury, as he failed to allege in his complaint or bill of particulars that he sustained such an injury (see Sanchez v. Steele, 149 A.D.3d 458, 459, 52 N.Y.S.3d 88 [1st Dept. 2017]);  see also Fernandez v. Hernandez, 151 A.D.3d 581, 582, 57 N.Y.S.3d 469 [1st Dept. 2017]).

Plaintiff's 90/180-day claim is defeated by the lack of evidence showing a causal nexus between the accident and the injury (see Sanchez, 149 A.D.3d at 459, 52 N.Y.S.3d 88).