FIGUEROA v. CASTILLO

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

Elizabeth FIGUEROA, Plaintiff-Appellant, v. Jose CASTILLO, et al., Defendants-Respondents.

Decided: November 21, 2006

FRIEDMAN, J.P., SULLIVAN, NARDELLI, CATTERSON, McGUIRE, JJ. Mitchell Dranow, Mineola, for appellant. Abrams, Gorelick, Friedman & Jacobson, New York (John O. Fronce of counsel), for Jose Castillo, respondent. Picciano & Scahill, P.C., Westbury (Robin Mary Heaney of counsel), for Milagros Torres, respondent.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered December 22, 2005, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants' submissions included excerpts from plaintiff's deposition, as well as medical reports by plaintiff's doctors, and described another automobile accident one month before the subject accident, wherein she sustained similar knee and back injuries, and a fall on the same knee subsequent to the latest accident.   These established additional contributing factors, interrupting the chain of causation between the subject accident and claimed injury, thereby shifting the burden of proof to plaintiff (Pommells v. Perez, 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005];  Franchini v. Palmieri,1 N.Y.3d 536, 775 N.Y.S.2d 232, 807 N.E.2d 282 [2003] ).   Plaintiff's experts failed to address how her current medical problems were causally related to the subject accident, in light of her past medical history (see Style v. Joseph, 32 A.D.3d 212, 214, 820 N.Y.S.2d 26 [2006];  Carter v. Full Serv., Inc., 29 A.D.3d 342, 815 N.Y.S.2d 41 [2006], lv. denied 7 N.Y.3d 709, 822 N.Y.S.2d 757, 855 N.E.2d 1172 [2006];  Montgomery v. Pena, 19 A.D.3d 288, 798 N.Y.S.2d 17 [2005] ).   Furthermore, the reports of defendants' experts sufficed to establish that plaintiff had not suffered a serious injury within the meaning of Insurance Law § 5102(d), and plaintiff's submissions failed to raise an issue of fact in that regard (see Perez v. Rodriguez, 25 A.D.3d 506, 809 N.Y.S.2d 15 [2006];  Suarez v. Abe, 4 A.D.3d 288, 772 N.Y.S.2d 317 [2003] ).