BLACK v. GORDON (2019)

Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about July 11, 2018, which granted defendants' motion for summary judgment dismissing the complaint due to plaintiff's inability to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Contrary to plaintiff's contention, defendants demonstrated prima facie that she did not sustain a serious injury involving hearing loss and tinnitus as a result of the motor vehicle accident.  Their expert otorhinolaryngologist found mild hearing impairment of less than one percent, and subjective complaints of tinnitus, which could not be causally related to the accident.  Such minor limitations and subjective complaints do not constitute a significant or serious injury within the meaning of Insurance Law § 5102(d) (see Peel v. Jordan, 202 A.D.2d 485, 485, 609 N.Y.S.2d 74 [2d Dept. 1994];  see generally Gaddy v. Eyler, 79 N.Y.2d 955, 957–958, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] [a “minor, mild or slight limitation of use” is “insignificant” under the no-fault statute]).  In opposition, plaintiff did not submit any medical evidence to substantiate this claim.

Defendants also demonstrated prima facie that plaintiff's claimed cervical spine injuries were not serious injuries causally related to the accident, but were preexisting degenerative conditions.

In opposition, plaintiff submitted, inter alia, an unaffirmed MRI report of her radiologist, who found bulging and herniated discs, with a bony ridge and hypertrophic changes, and the affidavit of a chiropractor, who examined her several years after the accident.  The chiropractor acknowledged that the MRI film showed preexisting degenerative conditions, and therefore he was required to address the issue of causation and explain the basis for his conclusions that the conditions were caused by the accident (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]).  Instead, the chiropractor provided only a conclusory opinion, which provided no basis for his opinion that the preexisting disc bulges were aggravated by the accident, or for assessing the extent of any exacerbation (Shu Chi Lam v. Wang Dong, 84 A.D.3d 515, 516, 922 N.Y.S.2d 381 [1st Dept. 2011]).  Nor did he provide a reason for his opinion that the herniation was new, or address the significance of the bony growth at the same level of the herniation, as noted in plaintiff's own MRI report (see Sosa–Sanchez v. Reyes, 162 A.D.3d 414, 75 N.Y.S.3d 27 [1st Dept. 2018];  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]).

Further, plaintiff provided no admissible evidence documenting contemporaneous complaints of pain or limitation in her cervical spine following the accident, which also undercuts her claim that the conditions were causally related to the accident (see Hernandez v. Marcano, 161 A.D.3d 676, 678, 78 N.Y.S.3d 54 [1st Dept. 2018];  Rosa v. Mejia, 95 A.D.3d 402, 403, 943 N.Y.S.2d 470 [1st Dept. 2012];  see also Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011]).