DIAKITE v. PSAJA CORP (2019)

Order, Supreme Court, Bronx County (Allison Y. Tuitt, J.), entered on or about April 20, 2018, which granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to establish that he suffered a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants satisfied their prima facie burden of showing that plaintiff did not sustain a serious injury to his cervical spine, lumbar spine, or right shoulder by submitting the reports of their neurologist and orthopedic surgeon, who found that plaintiff had normal range of motion and opined that any alleged injuries had resolved with no permanent or residual effects (see Holloman v. American United Transp. Inc., 162 A.D.3d 423, 423, 75 N.Y.S.3d 26 [1st Dept. 2018]; Frias v. Gonzalez–Vargas, 147 A.D.3d 500, 500, 47 N.Y.S.3d 30 [1st Dept. 2017]). Defendants also submitted a radiologist's report which opined that plaintiff's MRIs showed degenerative conditions, including osteophytes, disc desiccation and hypertrophic spurring (see Andrade v. Lugo, 160 A.D.3d 535, 535–536, 75 N.Y.S.3d 162 [1st Dept. 2018]; Moore–Brown v. Sofi Hacking Corp., 151 A.D.3d 567, 567, 57 N.Y.S.3d 38 [1st Dept. 2017]). Defendants also observed a three year gap in treatment, from eight months after the accident, April 2013, to December 2016, which plaintiff failed to explain (Pommells v. Perez, 4 N.Y.3d 566, 572, 576, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2008]).

In opposition, plaintiff failed to raise a triable issue on causation. He submitted unaffirmed medical records, which showed that his own diagnostic studies revealed degeneration and osteoarthritis in his spine, and a report of an expert who examined him four years after the accident. The expert failed to refute or address the findings of preexisting degeneration in plaintiff's own medical records, or explain how the accident, rather than preexisting conditions, was the cause of the alleged spinal injuries (Andrade, 160 A.D.3d at 536, 75 N.Y.S.3d 162; Lee v. Lippman, 136 A.D.3d 411, 412, 24 N.Y.S.3d 277 [1st Dept. 2016]). The expert's bare statement was similarly insufficient to raise an issue of fact as to whether the shoulder condition was causally related to the accident (see Walker v. Whitney, 132 A.D.3d 478, 479, 18 N.Y.S.3d 27 [1st Dept. 2015]).

Given the insufficient evidence that the subject accident caused plaintiff's back and shoulder injuries, he cannot establish his 90/180–day injury claim (see Henchy v. VAS Express Corp., 115 A.D.3d 478, 480, 981 N.Y.S.2d 418 [1st Dept. 2014]).