GBLAH v. NEW YORK CITY TRANSIT AUTHORITY (2019)

Order, Supreme Court, Bronx County (Donald J. Miles, J.), entered on or about April 16, 2018, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff Janet Cole's claims based on her inability to satisfy the serious injury threshold of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants satisfied their prima facie burden of showing that Cole did not sustain a serious injury to her lumbar spine by submitting the report of their neurologist who found that she had normal range of motion and opined that any alleged injuries had resolved with no neurological disabilities (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]).  They also relied on her testimony that she had a previous work-related lumbar spine injury for which she had surgery and received Social Security disability (see Pommells v. Perez, 4 N.Y.3d 566, 576, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]).

In opposition, plaintiff failed to raise an issue of fact.  She offered no admissible medical evidence concerning any of her alleged serious injuries, but only unaffirmed medical records.  In any event, if those unaffirmed medical records were considered, they would defeat her serious injury claim because they demonstrate that her lumbar spine injury, and subsequent surgeries, were causally related to the prior work-related injury, not the subject motor vehicle accident (see Bogle v. Paredes, 170 A.D.3d 455, 455, 95 N.Y.S.3d 193 [1st Dept. 2019];  Ogando v. National Frgt., Inc., 166 A.D.3d 569, 570, 87 N.Y.S.3d 159 [1st Dept. 2018]).  Moreover, the medical records contain no evidence of contemporaneous treatment of her lumbar spine in the period following the subject accident, which also indicates a lack of any causal connection (see Rosa v. Mejia, 95 A.D.3d 402, 403, 943 N.Y.S.2d 470 [1st Dept. 2012]).