CHAWDHURY v. 3511 SYSTEMS INC (2021)

Order, Supreme Court, Bronx County (Donna Mills, J.), entered on or about August 29, 2017, which denied defendants' motion for summary judgment dismissing the complaint based on the threshold issue of serious injury under Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

Defendants established prima facie entitlement to summary judgment through the affirmed reports of their medical experts.  Defendants' neurologist found normal ranges of motion in plaintiff's lumbar and cervical spine, and negative results on other tests, and concluded that the examination was normal (see Pastora L. v. Diallo, 167 A.D.3d 424, 424–425, 88 N.Y.S.3d 185 [1st Dept. 2018]).  In addition, defendants' radiologist opined that the MRI of plaintiff's cervical spine performed shortly after the accident revealed disc desiccation and other findings that were degenerative, nontraumatic and not causally related to the accident (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 536, 102 N.Y.S.3d 588 [1st Dept. 2019];  Macdelinne F. v. Jimenez, 126 A.D.3d 549, 551, 6 N.Y.S.3d 40 [1st Dept. 2015]).

In opposition, plaintiff submitted only the report of a physician who examined him six years after the accident and found limitations in range of motion of his cervical and lumbar spine.  That examination, without any admissible evidence of plaintiff's condition and treatment contemporaneous with the accident, was too remote to raise an inference that the limitations found six years later were causally related to the accident (see Jung Ung Moon v. Kumbee Ree P. Some, 189 A.D.3d 628, 629–630, 139 N.Y.S.3d 24 [1st Dept. 2020];  Camilo v. Villa Livery Corp., 118 A.D.3d 586, 587, 987 N.Y.S.2d 164 [1st Dept. 2014];  see also Rosa v. Mejia, 95 A.D.3d 402, 403, 943 N.Y.S.2d 470 [1st Dept. 2012];  Christian v. Waite, 61 A.D.3d 581, 581, 877 N.Y.S.2d 319 [1st Dept. 2009]).  Although plaintiff testified that he went to the emergency room and started physical therapy shortly after the accident, he failed to submit any of those records (see Rosa v. Mejia, 95 A.D.3d at 403, 943 N.Y.S.2d 470), and his physician's affirmed report describing radiological reports and other medical records not included in the record cannot be used to “bootstrap” those records into evidence (Malupa v. Oppong, 106 A.D.3d 538, 539, 966 N.Y.S.2d 9 [1st Dept. 2013] [internal quotation marks omitted]).  Plaintiff also failed to raise a triable issue of fact with respect to his lumbar spine claim, as he presented no objective evidence of injury and the record is bereft of any evidence that plaintiff ever received treatment for his lumbar spine (see Stephanie N. v. Davis, 126 A.D.3d 502, 502, 5 N.Y.S.3d 412 [1st Dept. 2015]).

As for plaintiff's 90/180-day claim, defendants established entitlement to summary judgment by demonstrating a lack of causation (see Henchy v. VAS Express Corp., 115 A.D.3d 478, 981 N.Y.S.2d 418 [1st Dept. 2014]) and by submitting plaintiff's deposition testimony stating that he was never confined to his bed or his home following the accident (see Pakeman v. Karekezia, 98 A.D.3d 840, 950 N.Y.S.2d 378 [1st Dept. 2012]).  Plaintiff failed to raise a triable issue of fact, as he did not submit any evidence to show causation or showing that he was “curtailed from performing his usual activities to a great extent rather than some slight curtailment” (Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982];  see Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992]).