GUZMAN v. Pedro Marine, Counterclaim Defendant–Respondent. (2020)

Order, Supreme Court, New York County (Lisa Ann Sokoloff, J.), entered February 4, 2019, which granted counterclaim defendant Pedro Marine's motion and defendants' cross motion for summary judgment dismissing plaintiff Edickson Cruz's complaint for failure to satisfy the serious injury threshold of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motions as to Cruz's claims of serious injury to his cervical spine and right shoulder, and otherwise affirmed, without costs.

Defendants established prima facie that plaintiff did not sustain an injury causing “significant limitation of use” or “permanent consequential limitation of use,” by submitting the affirmed reports of an orthopedist and neurologist, who noted normal ranges of motion in plaintiff's cervical spine and right shoulder and found no other evidence of abnormality (see Cattouse v. Smith, 146 A.D.3d 670, 45 N.Y.S.3d 453 [1st Dept. 2017];  Mejia v. Rosa, 95 A.D.3d 402, 403, 943 N.Y.S.2d 470 [1st Dept. 2012]).  As to causation, defendants' radiologist found that plaintiff's MRI films showed longstanding degeneration in his right shoulder and cervical spine, which were unrelated to the accident (see Campbell v. Drammeh, 161 A.D.3d 584, 77 N.Y.S.3d 381 [1st Dept. 2018]).

In opposition, plaintiff raised issues of fact as to his cervical spine claim through the affirmed report of his radiologist, who found multiple bulging discs, and his treating physician, who provided evidence of limited range of motion about a week after the accident and four years later and opined that the cervical spine conditions were causally related to the accident.  Since plaintiff's own medical records did not reveal any degenerative conditions in his spine, he was not required to submit evidence from a medical expert detailing why degenerative conditions were not the cause of the reported symptoms (see Jenkins v. Livo Car Inc., 176 A.D.3d 568, 569, 112 N.Y.S.3d 10 [1st Dept. 2019]).

As for the right shoulder, plaintiff's treating physician found limitations in range of motion shortly after the accident, and his orthopedist averred that he performed arthroscopic surgery which included repair of a labral tear, and found limited range of motion four years later, which he opined was causally related to the accident (see Charlie v. Guerrero, 60 A.D.3d 570, 876 N.Y.S.2d 368 [1st Dept. 2009]).  Although plaintiff did not initially complain to his doctor about his shoulder, he testified that his shoulder was bruised after the accident and then sought treatment within a month when pain developed.  Such delay does not require a finding of lack of a causal connection, but rather presents an issue of fact (see Swift v. New York City Tr. Auth., 115 A.D.3d 507, 981 N.Y.S.2d 706 [1st Dept. 2014]).

Defendants were entitled to dismissal of plaintiff's 90/180 claim based on plaintiff's pleadings and deposition testimony concerning his activities after the accident (see Anderson v. Pena, 122 A.D.3d 484, 485, 997 N.Y.S.2d 40 [1st Dept. 2014]).