BLUMENBERG v. LORA (2021)

Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered February 28, 2020, which granted defendants' motion for summary judgment dismissing the complaint alleging serious injury under Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established prima facie that plaintiff did not sustain a serious injury under Insurance Law § 5102(d) by submitting a report by their radiologist, who reviewed the MRI of plaintiff's left shoulder and found that it showed preexisting degenerative conditions, not caused by recent trauma, and no rotator cuff tear (see Gordon v. Hernandez, 181 A.D.3d 424, 121 N.Y.S.3d 233 [1st Dept. 2020];  Williams v. Laura Livery Corp., 176 A.D.3d 557, 112 N.Y.S.3d 16 [1st Dept. 2019]).  Defendants also met their burden by submitting a report by their orthopedist, who found that plaintiff's left shoulder and uninjured right shoulder had the same limitations in range of motion and that the left shoulder functioned normally (see Campbell v. Drammeh, 161 A.D.3d 584, 77 N.Y.S.3d 381 [1st Dept. 2018];  Camilo v. Villa Livery Corp., 118 A.D.3d 586, 987 N.Y.S.2d 164 [1st Dept. 2014]).  Defendants also relied on plaintiff's own medical records, which showed that she had normal range of motion four months after the accident, and their orthopedist reviewed the medical records and noted that the operative report prepared by plaintiff's orthopedic surgeon included a diagnosis of arthritis in the acromioclavicular joint (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]).

In opposition, plaintiff failed to raise an issue of fact.  Although the doctor who examined her recently found limitations in range of motion, he failed to reconcile his findings with an earlier finding of full range of motion made by another treating physician (see Booth v. Milstein, 146 A.D.3d 652, 653, 45 N.Y.S.3d 438 [1st Dept. 2017]).  Furthermore, his opinion that the claimed shoulder injury was caused by the accident was conclusory and based on the assumption that plaintiff had no preexisting conditions, which was contradicted by hospital records submitted by plaintiff that noted a history of arthritis.  Plaintiff's expert did not address the history of arthritis noted in plaintiff's own medical records or explain why her current symptoms were not related to the preexisting condition (see Alvarez, 120 A.D.3d at 1044, 993 N.Y.S.2d 1;  Stickney v. Akhar, 187 A.D.3d 425, 425, 132 N.Y.S.3d 120 [1st Dept. 2020];  Monahan v. Reyes, 184 A.D.3d 460, 461, 123 N.Y.S.3d 828 [1st Dept. 2020]).  Plaintiff did not submit any medical records to rebut defendants' radiologist's opinion that the MRI films showed no rotator cuff tear.

Defendants are entitled to dismissal of the 90/180-day claim, given the absence of a causal connection between plaintiff's left shoulder condition and the subject accident (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 102 N.Y.S.3d 588 [1st Dept. 2019]).  Furthermore, plaintiff's testimony shows that she was confined to bed for only three days and to home for only four days after the accident (see Olivare v. Tomlin, 187 A.D.3d 642, 643, 131 N.Y.S.3d 159 [1st Dept. 2020]).