LEDESMA v. RODRIGUEZ (2023)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered May 27, 2022, which, to the extent appealed from, granted defendants’ motion for summary judgment dismissing the complaint based on plaintiff's inability to meet the serious injury threshold under Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants made a prima facie showing that plaintiff's claimed injuries were not causally related to the accident by submitting a report of a radiologist, who, upon a review of CT scans of plaintiff's cervical and lumbar spine, observed conditions, including osteophytes, which he opined were chronic and degenerative in nature (see Auquilla v. Singh, 162 A.D.3d 463, 463, 78 N.Y.S.3d 323 [1st Dept. 2018];  Sosa–Sanchez v. Reyes, 162 A.D.3d 414, 414, 75 N.Y.S.3d 27 [1st Dept. 2018]).  Defendants also submitted a report of an orthopedist who found absence of range of motion limitations, tenderness to palpation, or other positive findings upon examination of plaintiff's lumbar and cervical spine (see Ziehl v. Chao Rui Zhu, 210 A.D.3d 612, 612, 180 N.Y.S.3d 73 [1st Dept. 2022];  Stickney v. Akhar, 187 A.D.3d 425, 425, 132 N.Y.S.3d 120 [1st Dept. 2020]), and plaintiff's deposition testimony concerning subsequent accidents (see Pommells v. Perez, 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005];  Auquilla, 162 A.D.3d at 463, 78 N.Y.S.3d 323).

In opposition, plaintiff failed to raise a triable issue of fact, as his radiologist's report of the CT scans noted findings of degenerative conditions, including osteophytes, and his medical experts did not address those conditions or explain why they were not the cause of his injuries (see Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509, 509–510, 999 N.Y.S.2d 37 [1st Dept. 2014], affd 25 N.Y.3d 1222, 16 N.Y.S.3d 515, 37 N.E.3d 1159 [2015];  Auquilla, 162 A.D.3d at 464, 78 N.Y.S.3d 323).  In addition, plaintiff did not submit admissible evidence of limitations in range of motion contemporaneous with the accident, which undermines his claim that he sustained a causally related injury (see Rosa v. Mejia, 95 A.D.3d 402, 404, 943 N.Y.S.2d 470 [1st Dept. 2012]).

Because plaintiff failed to raise a triable issue of fact as to causation, his 90/180-day claim also fails (see Sosa–Sanchez, 162 A.D.3d at 415, 75 N.Y.S.3d 27).