SANTOS v. UM CAB CORP (2019)

Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about September 14, 2018, which granted defendants' motion for summary judgment dismissing the complaint due to plaintiff's inability to satisfy the serious injury threshold of

Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established prima facie entitlement to judgment as a matter of law in this action where plaintiff alleges that he suffered serious injuries to his cervical spine and left shoulder as a result of an accident that occurred when defendants' vehicle hit the side of his vehicle. Defendants demonstrated that plaintiff did not sustain any serious injury by submitting the affirmed reports of their experts who, among other things, reviewed plaintiff's medical records and MRIs and opined that plaintiff's cervical spine and shoulder conditions were preexisting degenerative conditions not causally related to the accident (see 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 also submitted the report of an emergency medicine expert, who found that plaintiff's hospital records were inconsistent with his claimed serious injuries (see Hayes v. Gaceur, 162 A.D.3d 437, 79 N.Y.S.3d 119 [1st Dept. 2018]), as well as plaintiff's own MRI reports showing disc desiccation in the cervical spine and his testimony concerning prior left shoulder surgery following a work-related accident (see Thompson v. Bronx Merchant Funding Servs. LLC, 166 A.D.3d 542, 543, 90 N.Y.S.3d 16 [1st Dept. 2018]).

In opposition, plaintiff failed to raise a triable issue of fact. His treating physicians provided only conclusory opinions that the accident caused or exacerbated his conditions, but failed to explain why the degenerative and preexisting conditions reflected in plaintiff's medical records could not be ruled out as the cause of his injuries (see Thompson at 543–544, 90 N.Y.S.3d 16; Campbell v. Drammeh, 161 A.D.3d 584, 585, 77 N.Y.S.3d 381 [1st Dept. 2018]; Rickert v. Diaz, 112 A.D.3d 451, 452, 976 N.Y.S.2d 80 [1st Dept. 2013]).