DIXON v. Ryan J. Brown, et al., Defendants. (2019)

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about April 9, 2018, which, inter alia, granted the motion of defendants Sekou Kone and Martinez G. Transportation Inc. for summary judgment dismissing the complaint as against them based on plaintiff's inability to meet the serious injury threshold of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law in this action where plaintiff alleges that he suffered an aggravation of preexisting conditions in his cervical and lumbar spine as the result of an accident that occurred while he was a passenger in defendants' taxi.  Defendants submitted, among other things, plaintiff's deposition testimony, acknowledging that he previously had fusion surgery in his cervical spine, and reports of their radiologist who, consistent with plaintiff's own radiologists, found that MRIs and CT scans performed approximately seven years before the accident showed significant degenerative disc disease in his cervical and lumbar spine (see Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509, 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] ).  Defendants' orthopedist and neurologist found no current symptoms related to the accident, but only symptoms related to the preexisting conditions, and their emergency medicine expert found no indication of traumatic injury in plaintiff's hospital records from the day of the accident (see Moore–Brown v. Sofi Hacking Corp., 151 A.D.3d 567, 57 N.Y.S.3d 38 [1st Dept. 2017] ).

In opposition, plaintiff failed to raise a triable issue of fact.  He submitted medical records, which also confirmed his preexisting conditions, and the report of a physician who examined him two years after the accident.  Although the physician acknowledged plaintiff's prior surgery, preexisting degenerative conditions, and continuing pre-accident treatment, he failed to explain why plaintiff's alleged injuries were not caused by the preexisting conditions, or to provide any basis for finding an aggravation of those injuries (see Hessing v. Carroll, 161 A.D.3d 462, 463, 76 N.Y.S.3d 150 [1st Dept. 2018];  Latus v. Ishtarq, 159 A.D.3d 433, 71 N.Y.S.3d 67 [1st Dept. 2018] ).