ATTILIO v. TORRES (2020)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about February 13, 2019, which denied defendants' motion for summary judgment dismissing the complaint for lack of a causally related serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants, who do not dispute that plaintiff has significant and permanent limitations in range of motion of his cervical spine, lumbar spine, and left shoulder, established prima facie that these injuries are not causally related to the subject 2013 motor vehicle accident (see Massillon v. Regalado, 176 A.D.3d 600, 600, 112 N.Y.S.3d 40 [1st Dept. 2019];  Pouchie v. Pichardo, 173 A.D.3d 643, 644, 105 N.Y.S.3d 410 [1st Dept. 2019]).  Defendants' radiologist opined, based on his review of the relevant MRI films and CT scans, that plaintiff's claimed cervical spine, lumbar spine, and left shoulder injuries were degenerative in nature.  In addition, defendants relied on plaintiff's own medical records showing previous treatment of his lumbar spine following a 2007 accident and degenerative conditions in each of the claimed body parts (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];  Pommells v. Perez, 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]).

In opposition, plaintiff raised issues of fact as to causation by submitting affirmed reports by his treating orthopedic surgeon, physiatrist, and pain management specialists, who, after reviewing plaintiff's treatment and MRIs and diagnostic scans of the affected body parts, acknowledged the prior accident and the findings of degeneration in plaintiff's records, and explained their respective opinions that plaintiff's claimed injuries were the result of the subject accident, rather than of the prior motor vehicle accident or degeneration (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011];  Ortiz v. Boamah, 169 A.D.3d 486, 488, 93 N.Y.S.3d 311 [1st Dept. 2019]).  Their opinions were based, in part, on plaintiff being asymptomatic in the years preceding the current accident (id.).

We did not consider the affidavits by defendants' putative expert biomechanical engineer, because they were notarized without the state and not accompanied by the requisite certificate of conformity (see CPLR 2309[c];  see generally Midfirst Bank v. Agho, 121 A.D.3d 343, 350, 991 N.Y.S.2d 623 [2d Dept. 2014]).  Moreover, the technical defect was not corrected, despite plaintiff's timely objection in opposition to defendants' motion (compare Sanchez v. Oxcin, 157 A.D.3d 561, 563, 69 N.Y.S.3d 623 [1st Dept. 2018] [“assuming” burden shifted to plaintiff based on engineer's unsworn report, “since she did not object to its form”];  Shinn v. Catanzaro, 1 A.D.3d 195, 197–198, 767 N.Y.S.2d 88 [1st Dept. 2003] [defendant's argument that plaintiffs' submissions were not in admissible form was unpreserved for appellate review and therefore waived] ).

We have considered defendants' remaining contentions and find them unavailing.