OLIVERAS v. John Doe, et al., Defendants. (2020)

Order, Supreme Court, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered October 1, 2018, which denied plaintiff's motion for partial summary judgment on the issue of liability, and granted defendants' cross motion for summary judgment dismissing the complaint, based upon plaintiff's inability to meet the serious injury threshold of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants met their prima facie burden of establishing that plaintiff did not sustain a serious injury to her lumbar spine by submitting affirmed medical reports from an orthopedist, Dr. Robert Pick, and neurologist, Dr. Marianne Golden, noting largely negative findings in plaintiff's physical examinations (see Cattouse v. Smith, 146 A.D.3d 670, 45 N.Y.S.3d 453 [1st Dept. 2017];  see also Rosa v. Mejia, 95 A.D.3d 402, 403, 943 N.Y.S.2d 470 [1st Dept. 2012]).  Defendants' radiologist also noted that plaintiff's MRI films showed degenerative disease in her lumbar spine (see Campbell v. Drammeh, 161 A.D.3d 584, 77 N.Y.S.3d 381 [1st Dept. 2018]).

Though Dr. Pick and Dr. Golden did not address plaintiff's diagnostic tests, “the failure of a defendant's medical expert to discuss diagnostic tests indicating bulging or herniated discs will not, by itself, require denial of a defense summary judgment motion” (Shumway v. Bungeroth, 58 A.D.3d 431, 431, 870 N.Y.S.2d 27 [1st Dept. 2009], citing Onishi v. N & B Taxi, Inc., 51 A.D.3d 594, 858 N.Y.S.2d 171 [1st Dept. 2008]).  Moreover, Dr. Pick's observation that plaintiff had mild reductions in her range of motion does not undermine his conclusion that she did not sustain a disabling injury in the accident, where his examination findings were otherwise normal and he noted that any decrease in range of motion was inconsistent with her diagnoses (see Mendoza v. L. Two Go, Inc., 171 A.D.3d 462, 462, 96 N.Y.S.3d 576 [1st Dept. 2019]).

Plaintiff failed to raise a triable issue of fact, as her claim of a lumbar spine injury is inconsistent with her reports of injury to her right knee and forearm to EMS personnel and hospital staff immediately after the accident (see Arias v. Martinez, 176 A.D.3d 548, 112 N.Y.S.3d 18 [1st Dept. 2019]).  Moreover, her medical experts' reports and affirmations were too speculative to establish a causal connection between the accident and her lumbar injury (see Vaughn v. Baez, 305 A.D.2d 101, 101, 758 N.Y.S.2d 648 [1st Dept. 2003]).

We have considered the parties' remaining arguments and find them unavailing.