LYONS v. NEW YORK CITY TRANSIT AUTHORITY (2022)

Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered February 9, 2021, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing plaintiff's claims that he sustained a serious injury to his cervical spine, lumbar spine, or thoracic spine within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants made a prima facie showing that plaintiff's claimed injuries to his cervical spine and lumbar spine were not causally related to the subject motor vehicle accident by submitting an affirmed report of their radiologist, who opined that the MRIs of those body parts showed degenerative conditions and no evidence of trauma (see Antepara v. Garcia, 194 A.D.3d 513, 513, 148 N.Y.S.3d 451 [1st Dept. 2021]). Defendants also submitted evidence that plaintiff had previously injured his back in a prior motor vehicle accident, an MRI report by plaintiff's radiologist that found degenerative conditions in his cervical spine, and X ray reports finding scoliosis in his thoracic and lumbar spine. In addition, defendants satisfied their prima facie burden by submitting an affirmed report of their neurologist, who found that plaintiff had normal range of motion in his cervical, thoracic, and lumbar spine, and was capable of performing all his daily activities (see Acevedo v. Grayline N.Y. Tours, Inc., 204 A.D.3d 597, 598, 167 N.Y.S.3d 490 [1st Dept. 2022]; Reyes-Mendez v. City of New York, 192 A.D.3d 464, 465, 139 N.Y.S.3d 818 [1st Dept. 2021]).

In opposition, plaintiff submitted only a report of an orthopedic expert retained by defendants who found restricted range of motion in plaintiff's cervical, thoracic, and lumbar spine, but expressed no opinion on the cause of plaintiff's spinal conditions, except to note that plaintiff made suboptimal effort on testing and did not inform him of any prior accidents or injuries. Since plaintiff offered no medical evidence to address defendants’ prima facie showing that his claimed conditions were degenerative or preexisting in nature, he failed to raise an issue of fact as to whether he sustained a serious injury causally related to the subject accident (see Pommells v. Perez, 4 N.Y.3d 566, 572, 576, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]; Antepara v. Garcia, 194 A.D.3d at 513-514, 148 N.Y.S.3d 451; Malupa v. Oppong, 106 A.D.3d 538, 539, 966 N.Y.S.2d 9 [1st Dept. 2013]).