BRITO v. Lourdine Haney, et al., Defendants. (2024)

Order, Supreme Court, New York County (Nicholas W. Moyne, J.), entered December 8, 2023, which, to the extent appealed from, granted the motion of defendants Bethlehem Haulage, LLC and Esquea Alberto for summary judgment dismissing the complaint as against them on grounds that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting, among other things, affirmed reports of a neurologist and an orthopedist, who found normal ranges of motion in plaintiff's lumbar and cervical spine and left shoulder (see Haniff v. Khan, 101 A.D.3d 643, 643, 958 N.Y.S.2d 89 [1st Dept. 2012]).  Defendants’ experts concluded that the positive findings in plaintiff's lumbar and cervical spine and left shoulder MRIs were degenerative, consistent with wear and tear, and not causally related to the 2018 accident (see Feliz v. Fragosa, 85 A.D.3d 417, 418, 924 N.Y.S.2d 82 [1st Dept. 2011]).  Contrary to plaintiff's contention, although defendants’ experts utilized inconsistent numerical values, they relied on different editions of the AMA Guidelines that set forth different methodologies and different numerical values considered within the normal range of motion.  Since defendants’ experts both ultimately determined that plaintiff had normal range of motion upon their examinations, any inconsistencies in the numerical values noted are insignificant and do not preclude defendants from meeting their burden on summary judgment (see id.;  Anderson v. Zapata, 88 A.D.3d 504, 504, 930 N.Y.S.2d 564 [1st Dept. 2011]).

In opposition, plaintiff failed to create an issue of fact.  Neither of plaintiff's experts refuted defendants’ experts’ opinions that plaintiff's lumbar and cervical spine and shoulder injuries were the result of degenerative wear and tear, or that plaintiff's continued complaints were due to his involvement in a subsequent motor vehicle accident (see Tudisco v. James, 28 A.D.3d 536, 537, 813 N.Y.S.2d 482 [2d Dept. 2006]).  Plaintiff also failed to demonstrate that his injuries constituted a serious injury under any of the threshold categories in Insurance Law § 5102(d), since his experts either failed to opine on causation or to connect their conclusions through objective proof to any limitations or permanent loss of use plaintiff suffered because of the accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350–351, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002];  Stevens v. Homiak Transp., Inc., 21 A.D.3d 300, 304, 800 N.Y.S.2d 157 [1st Dept. 2005], lv denied 6 N.Y.3d 701, 810 N.Y.S.2d 415, 843 N.E.2d 1155 [2005]).