RONDA v. FRIENDLY BAPTIST CHURCH

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Supreme Court, Appellate Division, First Department, New York.

Ralph RONDA, Plaintiff-Appellant, v. FRIENDLY BAPTIST CHURCH, et al., Defendants-Respondents.

Decided: June 26, 2008

SAXE, J.P., NARDELLI, MOSKOWITZ, ACOSTA, DeGRASSE, JJ. Popick, Rutman & Jaw, New York (Rick J. Rutman of counsel), for appellant. Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for respondents.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered August 27, 2007, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Defendants carried their initial burden of showing that plaintiff's shoulder tendon tear and other injuries were not proximately caused by the subject accident (see Pommells v. Perez, 4 N.Y.3d 566, 574-575, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ), by submitting reports of plaintiff's previous line-of-duty injuries and the opinion of their examining orthopedist, based in part on the MRI report describing arthritic changes in the shoulder joint as degenerative, that the shoulder injury was among plaintiff's preexisting conditions.   Plaintiff failed to meet his burden to adduce evidence rebutting the asserted lack of causation (see Knoll v. Seafood Express, 5 N.Y.3d 817, 803 N.Y.S.2d 25, 836 N.E.2d 1148 [2005];  Becerril v. Sol Cab Corp., 50 A.D.3d 261, 854 N.Y.S.2d 695 [2008] ).

 We note that neither the minor curtailment of his activities nor his need to be placed on light duty upon his return to work raised an inference that plaintiff was unable to perform his usual and customary daily activities for 90 of the first 180 days following the accident (see Insurance Law § 5102[d];  Cartha v. Quin, 50 A.D.3d 530, 856 N.Y.S.2d 581 [2008] ).

We have considered plaintiff's remaining contentions and find them unavailing.