NWANJI v. CITY OF NEW YORK (2021)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about August 7, 2019, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff's complaint alleging that he sustained a serious injury to his lumbar spine within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff alleges that he sustained disc herniations as the result of a motor vehicle collision with defendants' ambulance in November 2012.  In moving for summary judgment, defendants established prima facie the lack of medical findings of resulting limitations through the report of their expert neurologist, who documented normal range of motion and opined that plaintiff had fully recovered from lumbar strain/sprain sustained as a result of the accident (see Cano v. U–Haul Co. of Ariz., 178 A.D.3d 409, 409, 115 N.Y.S.3d 24 [1st Dept. 2019];  Pouchie v. Pichardo, 173 A.D.3d 643, 644, 105 N.Y.S.3d 410 [1st Dept. 2019];  Castro v. DADS Natl. Enters., Inc., 165 A.D.3d 601, 601, 87 N.Y.S.3d 18 [1st Dept. 2018];  Haniff v. Khan, 101 A.D.3d 643, 643, 958 N.Y.S.2d 89 [1st Dept. 2012] ).

However, defendants did not meet their prima facie burden on causation because their expert neurologist – who was aware that an MRI of plaintiff's lumbar spine performed in January 2013, before he was involved in a subsequent motor vehicle accident, showed the herniations alleged by plaintiff to have been caused by the subject accident – expressly opined that plaintiff's claimed injuries were causally related to the subject accident and that there was no evidence of any contributing preexisting condition, even in spite of degenerative findings noted on X rays taken after the subsequent accident (see e.g. Perez–Vargas v. Aarron, 187 A.D.3d 485, 485–486, 133 N.Y.S.3d 245 [1st Dept. 2020];  Jackson v. Leung, 99 A.D.3d 489, 489, 952 N.Y.S.2d 130 [1st Dept. 2012] ).  Accordingly, the burden of proof on causation never shifted to plaintiff, and he therefore was not required to submit proof of treatment contemporaneous with the accident, since “a contemporaneous doctor's report is important to proof of causation ” (Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ).

Additionally, although defendants argued that plaintiff apparently ceased treatment as of April 2015 – which, ordinarily, plaintiff would be required to explain (see Pommells v. Perez, 4 N.Y.3d 566, 574–575, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ) – defendants also submitted plaintiff's deposition transcript in support of their motion, in which he explained that he ceased treatment because his no-fault benefits were terminated and he could no longer afford to continue treatment.  This was a sufficient explanation for plaintiff's cessation of treatment (see generally Ramkumar v. Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 976 N.Y.S.2d 1, 998 N.E.2d 801 [2013] ), and therefore defendants failed to eliminate all issues of fact on the matter.  Additionally, because defendants did not identify, in their motion papers, a perceived two-year gap between the subject accident and when plaintiff apparently, according to their expert neurologist's report, began treatment in November 2014, plaintiff was not required to address this issue either (see e.g. Massillon v. Regalado, 176 A.D.3d 600, 601, 112 N.Y.S.3d 40 [1st Dept. 2019] ).

In opposition to defendants' prima facie showing of the lack of medical findings of resulting limitations, plaintiff raised an issue of fact through the report of his expert physiatrist, who measured limitations in range of motion at a recent examination and causally related them to the subject accident (see e.g. Perez–Vargas, 187 A.D.3d at 486–487, 133 N.Y.S.3d 245;  Lewis v. Revello, 172 A.D.3d 505, 506, 101 N.Y.S.3d 25 [1st Dept. 2019];  see generally Perl, 18 N.Y.3d at 218, 936 N.Y.S.2d 655, 960 N.E.2d 424).  Since, as noted above, the burden of proof did not shift to plaintiff either on causation or to address his gap in or cessation of treatment, nothing more was required of him.