ROSARIO v. CABLEVISION SYSTEMS (2018)

Order, Supreme Court, Bronx County (Ruben Franco, J.), entered August 23, 2016, which granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to meet the serious injury threshold of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to plaintiff's claim of right shoulder injury, and otherwise affirmed, without costs.

Plaintiff alleges that he suffered serious injuries to his spine and right shoulder as the result of a motor vehicle accident.  Defendants established that plaintiff did not suffer serious injuries to his cervical or lumbar spine through the reports of a neurologist and orthopedist who found full range of motion in those allegedly injured body parts and no objective evidence of injury.  In addition, after review of a pre-accident MRI report of plaintiff's lumbar spine, the orthopedist opined that the lumbar spine injuries were the result of a prior work injury (see Lazu v. Harlem Group, Inc., 89 A.D.3d 435, 436, 931 N.Y.S.2d 608 [1st Dept. 2011] ).

However, as to plaintiff's right shoulder, defendants' orthopedist found limitations in two planes of range of motion, and thus they failed to meet their burden of showing that plaintiff did not suffer a serious injury involving significant or permanent limitations in use of his right shoulder (see Pineda v. Moore, 111 A.D.3d 577, 975 N.Y.S.2d 662 [1st Dept. 2013] ).  Although the orthopedist alluded to medical records showing that plaintiff's shoulder condition was chronic, he did not clearly or unequivocally opine as to lack of causation (see Karounos v. Doulalas, 153 A.D.3d 1166, 61 N.Y.S.3d 8 [1st Dept. 2017] ).  Accordingly, since defendants did not meet their prima facie burden, the burden of proof never shifted to plaintiff on this injury.

In opposition, plaintiff failed to raise an issue of fact as to whether his lumbar spine injuries were causally related to the accident, since his examining physician failed to address the degenerative findings in his own medical reports or the evidence of a preexisting injury (Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509, 510, 999 N.Y.S.2d 37 [1st Dept. 2014], affd 25 N.Y.3d 1222, 16 N.Y.S.3d 515, 37 N.E.3d 1159 [2015];  Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 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] ).  Plaintiff also failed to raise an issue of fact as to whether he sustained a serious injury to his cervical spine.  Although his physician found deficits in range of motion in these body parts, plaintiff failed to demonstrate that these deficits were related to any objective medical evidence of injury, such as an MRI (see Figueroa v. Ortiz, 125 A.D.3d 491, 492, 4 N.Y.S.3d 172 [1st Dept. 2015] ).

Since plaintiff failed to raise an issue of fact as to whether his spinal injuries were caused by the accident, he cannot recover for such injuries (see Fathi v. Sodhi, 146 A.D.3d 445, 446, 44 N.Y.S.3d 406 [1st Dept. 2017];  Hojun Hwang v. Doe, 144 A.D.3d 507, 40 N.Y.S.3d 767 [1st Dept. 2016];  see Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549, 898 N.Y.S.2d 110 [1st Dept. 2010] ).

Although defendants' expert did not examine plaintiff until more than two years after the accident, defendants established that plaintiff did not suffer a 90/180–day claim by relying on his deposition testimony that he was not confined to either his bed or home after the accident, and was confined to bed and home for less than 90 days following his shoulder surgery (see Brownie v. Redman, 145 A.D.3d 636, 637, 42 N.Y.S.3d 820 [1st Dept. 2016] ).