BONILLA v. Frederick Y. Appawu, Defendant–Respondent. (2019)

Order, Supreme Court, Bronx County (Donna Mills, J.), entered July 17, 2018, which denied defendants Bathily and IMF Associates' motion for summary judgment dismissing the complaint based on plaintiff's inability to establish that she suffered a serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, the motion granted and, upon a search of the record, defendant Appawu's motion for summary judgment granted as well.  The Clerk is directed to enter judgment accordingly.

Defendants met their prima facie burden of demonstrating that plaintiff did not sustain a serious injury to her cervical spine, lumbar spine, and shoulders causally related to the accident.  Defendants submitted plaintiff's own emergency room and medical records, which showed, among other things, that she made no complaints concerning her shoulders in the hospital and that her own doctors found evidence of degenerative disease and osteoarthritis.  Defendants' emergency medicine specialist and orthopedist opined that the emergency room records were entirely inconsistent with any claim of traumatic injury to her spine or shoulders (see Moore–Brown v. Sofi Hacking Corp., 151 A.D.3d 567, 567, 57 N.Y.S.3d 38 [1st Dept. 2017] ).  The orthopedist further opined that plaintiff's medical records, including MRI and operative reports, showed chronic, preexisting degenerative conditions, including osteoarthritis, facet disease, bursitis and chondromalacia (see Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 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];  Campbell v. Drammeh, 161 A.D.3d 584, 585, 77 N.Y.S.3d 381 [1st Dept. 2018] ).  Defendants' radiologist also opined that the MRI films of plaintiff's shoulders and cervical spine showed preexisting degenerative conditions unrelated to the accident, and their neurologist found conditions relating to plaintiff's diabetes.

In opposition, plaintiff failed to raise an issue of fact as to her claimed injuries.  While plaintiff submitted certified records showing post-accident treatment of her cervical spine and lumbar spine, the affirmed report of her medical expert did not provide the results of any recent examination or provide any opinion as to the cause of those conditions, so that plaintiff presented no admissible evidence sufficient to raise an issue of fact (see Callahan v. Shekhman, 149 A.D.3d 454, 455, 52 N.Y.S.3d 41 [1st Dept. 2017];  Green v. Domino's Pizza, LLC, 140 A.D.3d 546, 546–547, 33 N.Y.S.3d 260 [1st Dept. 2016] ).  As for the claimed shoulder injuries, plaintiff's certified medical records provided no evidence of contemporaneous treatment, and thus did not causally connect the injuries to the accident (Moore–Brown v. Sofi Hacking Corp., 151 A.D.3d at 567, 57 N.Y.S.3d 38;  Jones v. MTA Bus Co., 123 A.D.3d 614, 615, 999 N.Y.S.2d 68 [1st Dept. 2014] ).  Moreover, plaintiff's expert failed to adequately address the degenerative findings in plaintiffs' own medical records and MRI reports or to explain why those degenerative conditions could not have been the cause of plaintiff's claimed shoulder injuries (see Franklin v. Gareyua, 136 A.D.3d 464, 465–466, 24 N.Y.S.3d 304 [1st Dept. 2016], affd 29 N.Y.3d 925, 49 N.Y.S.3d 651, 71 N.E.3d 1218 [2017];  Campbell v. Drammeh, 161 A.D.3d at 585, 77 N.Y.S.3d 381).

Because plaintiff cannot meet the serious injury threshold against the appealing defendants, she cannot meet it against the nonappealing defendant (Lall v. Ali, 101 A.D.3d 439, 955 N.Y.S.2d 327 [1st Dept. 2012] ).