THOMPSON v. BRONX MERCHANT FUNDING SERVICES LLC (2018)

Order, Supreme Court, Bronx County (Donald Miles, J.), entered on or about July 13, 2017, which granted defendants' motions for summary judgment dismissing the complaint based on plaintiff's inability to establish that she suffered a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Plaintiff alleges that she sustained serious injuries as a result of an accident that occurred when she was a seat-belted rear passenger in an access-a-ride van that was hit in the rear by a second vehicle.  Specifically, she alleges that her right knee sustained injuries leading to a total knee replacement, as well as right shoulder impingement and cervical and lumbar spine disc bulges and herniations.

Defendants demonstrated prima facie through expert medical reports that plaintiff's alleged injuries had resolved and were preexisting degenerative conditions (see Birch v. 31 N. Blvd., Inc., 139 A.D.3d 580, 581, 32 N.Y.S.3d 142 [1st Dept. 2016] ).  Their radiologists opined that plaintiff's post-accident MRI films showed osteoarthritis in the knee, osteophyte complex and disc desiccation in the spine, and degenerative changes in the shoulder joint (see Lee v. Lippman, 136 A.D.3d 411, 412, 24 N.Y.S.3d 277 [1st Dept. 2016] ).  Defendants' neurologist further opined that plaintiff suffered neuropathy related to her diabetes mellitis, not radiculopathy related to any spinal condition.

Defendants also relied on plaintiff's own medical records, which showed that she underwent arthroscopic surgery for her right knee two years before the accident and that her MRI showed “severe osteoarthritis” in that knee.  Contrary to plaintiff's argument, defendants were entitled to rely on her unaffirmed medical records produced in discovery (see Galarza v. J.N. Eaglet Publ. Group, Inc., 117 A.D.3d 488, 489, 985 N.Y.S.2d 494 [1st Dept. 2014] ).

In opposition, plaintiff failed to raise an issue of fact as to whether any of her claimed injuries were causally related to the accident.  Her orthopedic surgeon provided only a conclusory opinion that plaintiff's right knee osteoarthritis was aggravated and exacerbated, without addressing her prior surgery, and failed to explain why the preexisting conditions documented in plaintiff's medical records were not the cause of her symptoms or the extent of any exacerbation (see Auquilla v. Singh, 162 A.D.3d 463, 78 N.Y.S.3d 323 [1st Dept. 2018]; Farmer v. Ventkate Inc., 117 A.D.3d 562, 986 N.Y.S.2d 98 [1st Dept. 2014] ).  Plaintiff submitted unaffirmed MRI reports of her right shoulder and spine, which could not be considered.  Her physicians provided conclusory opinions that her claimed injuries in those parts were causally related to the accident, without adequately addressing the degenerative findings by defendants' radiologists and the findings in plaintiff's own MRI reports, including disc desiccation, osteophytes, and cystic structures, or the impact of plaintiff's diabetes (see Campbell v. Drammeh, 161 A.D.3d 584, 585, 77 N.Y.S.3d 381 [1st Dept. 2018]; Khanfour v. Nayem, 148 A.D.3d 426, 427, 49 N.Y.S.3d 394 [1st Dept. 2017] ).

Furthermore, plaintiff's deposition testimony that she missed only one day of work following the accident and her affidavit in which she said that she missed one week of work defeat her 90/180–day claim (see e.g. Frias v. Son Tien Liu, 107 A.D.3d 589, 590, 967 N.Y.S.2d 382 [1st Dept. 2013] ).