DENEEN v. BUCKNOR (2019)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about November 15, 2018, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff's claims of serious injury to his cervical and lumbar spine and his 90/180–day claim within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Plaintiff alleged that, as a result of an accident involving defendants' vehicle, he sustained injury to his cervical and lumbar spine, and other consequential injuries.  The record shows that defendants established prima facie entitlement to judgment as a matter of law that plaintiff's spinal conditions were preexisting and degenerative in nature through the expert report of their radiologist, as well as the MRI reports of plaintiff's own radiologist, who noted degeneration and an encroaching spur in the cervical spine and found “[n]o acute process” in the lumbar spine (see Ortiz v. Boamah, 169 A.D.3d 486, 93 N.Y.S.3d 311 [1st Dept. 2019]; Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509, 999 N.Y.S.2d 37 [1st Dept. 2014], affd 25 N.Y.3d 1222, 16 N.Y.S.3d 515, 37 N.E.3d 1159 [2015]).

In opposition, plaintiff failed to raise an issue of fact as to the causal connection between his spinal condition and the accident because his physicians provided conclusory opinions without addressing the evidence of degeneration in his own medical records and explaining why his symptoms were not related to the preexisting conditions (see Rivera at 509–510, 999 N.Y.S.2d 37).  Plaintiff's failure to raise an issue of fact as to whether his spinal conditions were causally related to the accident means that he cannot recover for them.  (See Hojun Hwang v. Doe, 144 A.D.3d 507, 40 N.Y.S.3d 767 [1st Dept. 2016].

Furthermore, the court properly dismissed plaintiff's 90/180–day claim in view of plaintiff's testimony that he returned to work on a light duty basis two weeks after the accident, and continues to work (see Anderson v. Pena, 122 A.D.3d 484, 997 N.Y.S.2d 40 [1st Dept. 2014]; Pakeman v. Karekezia, 98 A.D.3d 840, 841, 950 N.Y.S.2d 378 [1st Dept. 2012]).  Plaintiff's statements, that he has significant restrictions in performing his usual activities and hobbies, are unsupported by the objective medical evidence (see Mitchell v. Calle, 90 A.D.3d 584, 585, 936 N.Y.S.2d 23 [1st Dept. 2011]).

We have considered plaintiff's remaining arguments and find them unavailing.