MOCTEZUMA v. GARCIA (2019)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered December 17, 2018, which granted defendants' motion for summary judgment dismissing the complaint on the threshold issue of serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants made a prima facie showing that the condition of plaintiff's left knee involved preexisting osteoarthritis not causally related to the accident and that she did not seek contemporaneous post-accident treatment for left knee complaints after the accident (see Farmer v. Ventkate Inc., 117 A.D.3d 562, 986 N.Y.S.2d 98 [1st Dept. 2014]). In opposition, plaintiff submitted her own MRI reports finding osteoarthritis, and an affirmed report of her orthopedic surgeon, whose operative report diagnosed severe osteoarthritis before and after surgery. The surgeon's opinion that the accident exacerbated the preexisting conditions was insufficient to raise an issue of fact as to causation since it provided no objective support, other than plaintiff's history, and failed to offer any evidence of injuries different from the “undisputed preexisting arthritic condition” (id.; see also 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]; Acosta v. Traore, 136 A.D.3d 533, 24 N.Y.S.3d 652 [1st Dept. 2016]). The absence of records showing contemporaneous post-accident treatment of the left knee—other than the MRI reports showing osteoarthritis—further undermines plaintiff's claim that the condition was causally related to the accident (see Rosa v. Mejia, 95 A.D.3d 402, 403–404, 943 N.Y.S.2d 470 [1st Dept. 2012]).

Assuming, without deciding, that plaintiff properly alleged injuries to her lumbar and thoracic spine, left shoulder, and right wrist, her unsworn medical records were insufficient to raise an issue of fact as to whether she sustained a serious injury as to each of those body parts (see Pastora L. v. Diallo, 167 A.D.3d 424, 425, 88 N.Y.S.3d 185 [1st Dept. 2018]; Luetto v. Abreu, 105 A.D.3d 558, 963 N.Y.S.2d 112 [1st Dept. 2013]).