RODRIGUEZ v. KONATE (2018)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered February 6, 2017, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the claims of serious injury of a permanent nature within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion denied.

Defendants established prima facie that plaintiff did not suffer serious injuries of a permanent nature to his cervical or lumbar spine or his knees by submitting the affirmed report of a radiologist who opined that the MRI films of those body parts showed chronic degenerative conditions that were unrelated to trauma caused by the accident (see Chaston v. Doucoure, 125 A.D.3d 500, 3 N.Y.S.3d 33 [1st Dept. 2015];  Rickert v. Diaz, 112 A.D.3d 451, 976 N.Y.S.2d 80 [1st Dept. 2013] ).  They also submitted the report of an orthopedic surgeon who, although he declined to compare plaintiff's range of motion values to normal values, found no objective evidence of injury upon recent examination using diagnostic tests.

In opposition, plaintiff raised an issue of fact by submitting affirmations by his radiologist and orthopedic surgeon, who affirmed the contents of their post-accident MRI and operative reports, finding bulging discs in the spine and meniscal tears in both knees.  In addition, he submitted a narrative report by his treating physician detailing her post-accident findings of limited range of motion and other symptoms of injury and opining that the injuries were caused by the accident (see Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ).  Plaintiff also submitted a report from another physician, who conducted a recent examination, found continuing range of motion deficits, and attributed all of plaintiff's injuries to the accident (see Mejia v. Ramos, 124 A.D.3d 449, 1 N.Y.S.3d 73 [1st Dept. 2015];  James v. Perez, 95 A.D.3d 788, 789, 945 N.Y.S.2d 283 [1st Dept. 2012];  Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [1st Dept. 2011] ).  Since defendants did not present any evidence of preexisting bulging discs or torn menisci in plaintiff's own medical records, nothing further was required of plaintiff in opposition to their motion (Sanchez v. Oxcin, 157 A.D.3d 561, 563, 69 N.Y.S.3d 623 [1st Dept. 2018];  see Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 993 N.Y.S.2d 1 [1st Dept. 2014], affd 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2015] ).