WALLINGFORD v. PEREZ

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

Geraldine WALLINGFORD, Plaintiff-Appellant, v. Abraham PEREZ, et al., Defendants-Respondents.

Decided: October 26, 2004

TOM, J.P., SULLIVAN, LERNER, GONZALEZ, CATTERSON, JJ. Pollack, Pollack, Isaac & De Cicco, New York (Christopher Crawford of counsel), for appellant. Isserlis & Sullivan, Bethpage (Corinne I. Andersen of counsel), for Abraham Perez and Carlos A. Lopez, respondents. Cheven, Keely & Hatzis, New York (Mayu Miyashita of counsel), for Rafael Mendez, respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered April 28, 2003, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as required by Insurance Law § 5102(d), unanimously affirmed, without costs.

Although plaintiff's physician performed surgery on her knee some 10 months after the accident which revealed tears that he opines were caused by the accident, his reports do not explain why an MRI taken a month after the accident showed no tears, or why plaintiff did not complain to him or anyone else about the knee until some four months after the accident, which was a few days after she was knocked down in an unrelated incident.   His report does say that the MRI revealed spurring and mucoid degeneration, but does not address defendants' experts' opinions, based on that MRI and X-rays taken three years before the accident, that there were no post-traumatic changes to the knee after the accident and that the claimed injury was degenerative in origin.   Such failure to address crucial facts relevant to causation warrants a finding of no causation (cf. Braham v. U-Haul Co., 195 A.D.2d 277, 599 N.Y.S.2d 593 [1993];  Eisen v. Walter & Samuels, 215 A.D.2d 149, 626 N.Y.S.2d 109 [1995] ).   Nor does plaintiff adduce evidence sufficient to raise an issue of fact as to whether the claimed injuries to her neck and back resulted in any significant or permanent limitations (see Godden v. Carmen, 169 A.D.2d 812, 565 N.Y.S.2d 181 [1991] ).   We have considered and rejected plaintiff's other arguments.