ROSADO v. HAIDARA (2024)

Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered March 28, 2023, which granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to meet the serious injury threshold of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established their prima facie burden of showing that plaintiff did not sustain a serious injury to his cervical or lumbar spine by relying on the report of their orthopedic surgeon, who found that plaintiff had normal range of motion and that there was no objective evidence of disability or permanency (see Hall v. Uber Tech., Inc., 221 A.D.3d 503, 504, 198 N.Y.S.3d 360 [1st Dept. 2023];  Newell v. Javier, 220 A.D.3d 487, 487, 197 N.Y.S.3d 503 [1st Dept. 2023]).  Defendants also met their burden by relying on evidence that plaintiff previously sustained a back injury in another accident and submitting the report of their radiologist, who opined that the MRIs of the body parts showed longstanding conditions with no evidence of trauma, thereby defeating the claim of causal connection between this accident and plaintiff's injuries (see Lyons v. New York City Tr. Auth., 208 A.D.3d 1105, 1105, 176 N.Y.S.3d 9 [1st Dept. 2022];  Antepara v. Garcia, 194 A.D.3d 513, 513, 148 N.Y.S.3d 451 [1st Dept. 2021]).

In opposition, plaintiff failed to raise an issue of fact, as the only evidence he submitted was an unsigned report of a treating physician (see Gblah v. New York City Tr. Auth., 173 A.D.3d 622, 623, 103 N.Y.S.3d 414 [1st Dept. 2019]).  Even if that report could be considered because defendants waived the issue by failing to object (see Shinn v. Catanzaro, 1 A.D.3d 195, 198, 767 N.Y.S.2d 88 [1st Dept. 2003]), the report was insufficient to raise an issue of fact.  The report was based on a single examination of plaintiff more than four years after the accident and after his last treatment, and did not address plaintiff's prior accident or his medical condition contemporaneous with the accident.  Therefore, it was too remote in time to establish a causal link between plaintiff's current limitations and the accident (see Pommells v. Perez, 4 N.Y.3d 566, 576, 579, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005];  Acevedo v. Grayline N.Y. Tours, Inc., 204 A.D.3d 597, 598, 167 N.Y.S.3d 490 [1st Dept. 2022];  Reyes–Mendez v. City of New York, 192 A.D.3d 464, 465, 139 N.Y.S.3d 818 [1st Dept. 2021];  Blake v. Sanchez, 198 A.D.3d 527, 527–528, 152 N.Y.S.3d 806 [1st Dept. 2021]).

Defendants are entitled to dismissal of the 90/180-day claim in the absence of a causal connection between plaintiff's claimed injuries and the subject accident (see Dellino v. Puello, 189 A.D.3d 430, 431, 137 N.Y.S.3d 19 [1st Dept. 2020]).