RODRIGUEZ v. GILBERTO SANTOS AND CITY QUEENS INC (2025)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on January 18, 2024, which granted defendants’ motions for summary judgment dismissing the complaint on the grounds that plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established prima facie entitlement to summary judgment by showing that plaintiff John Paul Rodriguez did not sustain a serious injury to his cervical spine, and that plaintiff Angel Rodriguez did not sustain a serious injury to his cervical or lumbar spine or his left knee, by submitting the medical reports of an orthopedic surgeon, who found full range of motion, normal test results, and resolved strains in the allegedly injured body parts of both plaintiffs (see Hall v. Uber Tech., Inc., 221 A.D.3d 503, 504, 198 N.Y.S.3d 360 [1st Dept. 2023];  Nadim v. Gadi Inc., 190 A.D.3d 648, 648, 140 N.Y.S.3d 228 [1st Dept. 2021]).

In addition, defendants submitted reports of a radiology expert who concluded that the MRIs of John Paul's cervical spine showed no injuries at all, and some “drying out” at one level, which was degenerative in nature (see Pastora L. v. Diallo, 167 A.D.3d 424, 424, 88 N.Y.S.3d 185 [1st Dept. 2018]).  As for Angel, the radiology expert found mild bulging and desiccation in the cervical spine, degeneration and desiccation in the lumbar spine, and a tear of the medial meniscus in the left knee, all of which she opined was degenerative in origin and unrelated to the accident (see Auquilla v. Singh, 162 A.D.3d 463, 463–464, 78 N.Y.S.3d 323 [1st Dept. 2018]).  Defendants also relied on evidence that both plaintiffs ceased treatment within months after the accident and that Angel had a previous injury to his lumbar spine that led to surgery and disabled him from working (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]).

In opposition, plaintiffs failed to submit medical evidence sufficient to raise an issue of fact.  The unaffirmed MRI and chiropractic reports, which defendants’ experts did not rely upon, were inadmissible and could not be bootstrapped into evidence through the affirmed reports of plaintiffs’ physiatrist (see Acevedo v. Grayline N.Y. Tours, Inc., 204 A.D.3d 597, 598, 167 N.Y.S.3d 490 [1st Dept. 2022]).  Furthermore, as to John Paul, the physiatrist's bare assertion that his treatment was terminated years earlier because he “reached maximal medical improvement” is unsupported by any evidence and insufficient to explain his cessation of treatment (see Brown v. City of New York, 29 A.D.3d 447, 448, 815 N.Y.S.2d 88 [1st Dept. 2006]).  Angel similarly did not provide an explanation for his cessation of treatment months after the accident (see Nadim v. Gadi Inc., 190 A.D.3d at 649, 140 N.Y.S.3d 228), and the physiatrist's report failed to rule out his prior spinal injury as the cause of his current symptoms (see Rodriguez v. 3rd Ave. Tr. Inc., 201 A.D.3d 417, 417–418, 156 N.Y.S.3d 727 [1st Dept. 2022];  Maraj v. Fletcher, 180 A.D.3d 621, 621, 121 N.Y.S.3d 229 [1st Dept. 2020]).

We have considered plaintiffs’ remaining contentions and find them unavailing.