K.O., an Infant by Her Mother and Natural Guardian Pastora L., Plaintiff–Appellant, v. Walter Romero, et al., Defendants–Respondents. (2018)

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about November 15, 2017, which granted defendants Walter Romero and Umbrella Cab Corp.'s motion for summary judgment dismissing the infant plaintiff's claims on the threshold issue of serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established prima facie that the infant plaintiff's claimed injuries were not serious within the meaning of Insurance Law § 5102(d) through the affirmed reports of an orthopedic surgeon who found normal range of motion and no objective evidence of injury and a radiologist who found no evidence of injury in the MRIs taken of plaintiff's claimed injured body parts after the accident (see Hernandez v. Marcano, 161 A.D.3d 676, 78 N.Y.S.3d 54 [1st Dept. 2018] ).  Defendants also submitted the report of an expert in emergency medicine, who opined that plaintiff's emergency room records, which showed she “[got] checked” after the accident and had no complaints of pain or signs of injury, were inconsistent with her serious injury claims (see Hayes v. Gaceur, 162 A.D.3d 437, 438, 79 N.Y.S.3d 119 [1st Dept. 2018] ).  Relying on plaintiff's deposition testimony, defendants also identified a complete cessation of treatment after several months of physical therapy (see Pommells v. Perez, 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).

In opposition, plaintiff failed to raise a triable issue of fact as to whether she sustained a serious, rather than a minor, injury.  Her medical records confirm defendants' position, namely, that there was no objective evidence of injury (see Thomas v. City of New York, 99 A.D.3d 580, 953 N.Y.S.2d 15 [1st Dept. 2012], lv denied 22 N.Y.3d 857, 981 N.Y.S.2d 368, 4 N.E.3d 380 [2013] ).  Her records also include findings of normal range of motion and resolving complaints.  Plaintiff offered no justification for her cessation of treatment only several months following the collision (see Pommells, 4 N.Y.3d at 574, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Frias v. Son Tien Liu, 107 A.D.3d 589, 590, 967 N.Y.S.2d 382 [1st Dept. 2013] ).  Moreover, the fact that four years followed in which plaintiff did not seek treatment renders the opinion of her medical expert, submitted in opposition, “speculative as to the permanency, significance, and causation of the claimed injuries” (Vila v. Foxglove Taxi Corp., 159 A.D.3d 431, 431–32, 71 N.Y.S.3d 69 [1st Dept. 2018] ).