CAMPBELL v. DRAMMEH (2018)

Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered on or about July 7, 2017, which granted defendants' motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants established prima facie that plaintiff did not sustain serious injury within the meaning of Insurance Law § 5102(d) to his cervical or lumbar spine or right shoulder as a result of the motor vehicle accident through the affirmed reports of their radiologist, who found that any claimed injury was the result of preexisting degenerative conditions (see Thomas v. NYLL Mgt. Ltd., 110 A.D.3d 613, 973 N.Y.S.2d 625 [1st Dept. 2013] ).  Defendants submitted plaintiff's orthopedist's findings that the ranges of motion in the allegedly injured right shoulder and the uninjured left shoulder were the same (see Camilo v. Villa Livery Corp., 118 A.D.3d 586, 987 N.Y.S.2d 164 [1st Dept. 2014] ).  In addition, defendants pointed to the evidence that plaintiff ceased all treatment for his claimed injuries within four months after the accident (see Pommells v. Perez, 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).  They also submitted an MRI report and an operative report contained in plaintiff's own medical records showing shoulder conditions such as bursitis and hypertrophy, which their expert explained were degenerative in nature (see Franklin v. Gareyua, 136 A.D.3d 464, 24 N.Y.S.3d 304 [1st Dept. 2016], affd 29 N.Y.3d 925, 49 N.Y.S.3d 651, 71 N.E.3d 1218 [2017];  Walker v. Whitney, 132 A.D.3d 478, 18 N.Y.S.3d 27 [1st Dept. 2015] ).

In opposition, plaintiff failed to raise an issue of fact as to his claimed spinal injuries, since he submitted no opinion about whether those injuries were caused by the accident, rather than degeneration (see Walker, 132 A.D.3d at 478–79, 18 N.Y.S.3d 27), and no evidence of treatment (see Pommells, 4 N.Y.3d at 572, 797 N.Y.S.2d 380, 830 N.E.2d 278).  As for his right shoulder claim, plaintiff's orthopedic surgeon opined before performing surgery that any injuries were causally related to the accident.  However, he failed to address or explain either the findings in plaintiff's own MRI of hypertrophic changes and of no acute fracture or dislocation.  He also did not address his own operative finding of bursitis (see Franklin v. Gareyua, 136 A.D.3d at 465–466, 24 N.Y.S.3d 304;  Walker, 132 A.D.3d at 478–479, 18 N.Y.S.3d 27).  Moreover, plaintiff provided no explanation for his complete cessation of treatment after the surgery (see Pommells, 4 N.Y.3d at 574, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Baez v. Rahamatali, 24 A.D.3d 256, 808 N.Y.S.2d 171 [1st Dept. 2005], affd 6 N.Y.3d 868, 817 N.Y.S.2d 204, 850 N.E.2d 19 [2006];  Frias v. Son Tien Liu, 107 A.D.3d 589, 590, 967 N.Y.S.2d 382 [1st Dept. 2013] ).