ANTEPARA v. GARCIA (2021)

entered December 12, 2019, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint on the grounds that plaintiff's injuries do not meet the serious injury threshold of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendant met his prima facie burden of showing that plaintiff did not sustain a serious injury to his spine, right hip, right elbow, or left knee by submitting the report of an orthopedic surgeon, who found full range of motion or only slight limitations, and opined that plaintiff's alleged injuries had resolved (see Stickney v. Akhar, 187 A.D.3d 425, 132 N.Y.S.3d 120 [1st Dept. 2020];  Stovall v. New York City Tr. Auth., 181 A.D.3d 486, 117 N.Y.S.3d 840 [1st Dept. 2020]).  Defendant also met his burden with respect to plaintiff's claimed injuries to his cervical spine and lumbar spine by submitting the report of a radiologist who found that plaintiff's post-accident MRIs showed preexisting degenerative changes not causally related to the accident (see Gordon v. Hernandez, 181 A.D.3d 424, 425, 121 N.Y.S.3d 233 [1st Dept. 2020]).

In opposition, plaintiff failed to raise an issue of fact.  Plaintiff's expert examined him one time, six years after the limitations were causally related to the accident (see Camilo v. Villa Livery Corp., 118 A.D.3d 586, 587, 987 N.Y.S.2d 164 [1st Dept. 2014]).  Plaintiff's expert failed to address prior and subsequent motor vehicle accidents in which plaintiff claimed to have suffered spinal injuries, or explain why those injuries were different from those claimed as a result of the subject accident (see Bogle v. Paredes, 170 A.D.3d 455, 455, 95 N.Y.S.3d 193 [1st Dept. 2019];  Ogando v. National Frgt., Inc., 166 A.D.3d 569, 570, 87 N.Y.S.3d 159 [1st Dept. 2018]).  Plaintiff's expert also failed to address the findings in plaintiff's MRIs, showing degenerative conditions in his cervical and lumbar spine, or the medical records reflecting a history of chronic neck and back pain, or to explain why those preexisting conditions could not have been the cause of plaintiff's current complaints (see Monahan v. Reyes, 184 A.D.3d 460, 461, 123 N.Y.S.3d 828 [1st Dept. 2020]).  Plaintiff offered no objective evidence of serious injury to his right hip, right elbow, or left knee, but only minor, temporary complaints such as contusion or mild joint effusion.

Defendant is entitled to dismissal of the 90/180-day claim in the absence of evidence of a causal connection between plaintiff's condition and the subject accident (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 536, 102 N.Y.S.3d 588 [1st Dept. 2019]).  Furthermore, plaintiff's testimony that he was confined to home for only a few days after the accident defeats his claim (see Tejada v. LKQ Hunts Point Parts, 166 A.D.3d 436, 437–438, 88 N.Y.S.3d 156 [1st Dept. 2018]).