AQUINO v. Danny Moses Ramos, Defendant. (2018)

Order, Supreme Court, Bronx County (Joseph Capella, J.), entered on or about May 4, 2017, which granted defendants' motion for summary judgment dismissing the complaint for lack of serious injury under Insurance Law § 5102(d), unanimously modified, on the law, the motion denied as to plaintiff's claims of serious injury to her cervical and lumbar spine, and otherwise affirmed, without costs.

Defendants met their initial burden through the affirmed reports of their medical experts who found no objective evidence of serious injury to the cervical spine, lumbar spine, and left shoulder, and concluded that any observed conditions were not causally related to the accident (see Franklin v. Gareyua, 136 A.D.3d 464, 465, 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];  Rickert v. Diaz, 112 A.D.3d 451, 976 N.Y.S.2d 80 [1st Dept. 2013] ).  In particular, their orthopedist opined that the findings made by plaintiff's orthopedic surgeon following arthroscopic surgery on the shoulder, including a “rather prominent spur,” synovitis, and bursitis, indicated that plaintiff had a degenerative labral tear and impingement, and no causally-related pathology.  Defendants also relied on the report of an emergency medical specialist who concluded that plaintiff's post-accident hospital records were inconsistent with any traumatically-induced injuries, and showed no clinical signs of shoulder injury (see Paulling v City Car & Limousine Servs., Inc., 155 A.D.3d 481, 65 N.Y.S.3d 19 [1st Dept. 2017];  Moore–Brown v. Sofi Hacking Corp., 151 A.D.3d 567, 57 N.Y.S.3d 38 [1st Dept. 2017] ).

In opposition, plaintiff raised an issue of fact as to her cervical and lumbar spine by submitting affirmed reports of her treating physicians who found range of motion limitations, objective evidence of injury, such as bulging discs shown on MRI films, and opined that these injuries were causally related to the accident (see Encarnacion v. Castillo, 146 A.D.3d 600, 44 N.Y.S.3d 744 [1st Dept. 2017];  Santana v. Tic–Tak Limo Corp., 106 A.D.3d 572, 966 N.Y.S.2d 30 [1st Dept. 2013] ).  Since defendants did not present any evidence of preexisting injuries to the cervical and lumbar spine documented in plaintiff's own medical records, nothing further was required of plaintiff in opposition to the motion as to those claims (see Sanchez v. Oxcin, 157 A.D.3d 561, 563, 69 N.Y.S.3d 623 [1st Dept. 2018] ).

However, as to plaintiff's claimed shoulder injury, her doctors' conclusory opinions of a causal relationship were insufficient to raise an issue of fact.  They did not address her surgeon's operative findings, including the “very extremely large bone spur” and synovitis, and explain why these findings were not degenerative or were not the cause of the shoulder conditions for which she had surgery (see De La Rosa v. Okwan, 146 A.D.3d 644, 45 N.Y.S.3d 443 [1st Dept. 2017], lv denied 29 N.Y.3d 908, 2017 WL 2367334 [2017];  Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 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] ).