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

Nestor D. TEJADA, Plaintiff–Respondent, v. LKQ HUNTS POINT PARTS, et al., Defendants–Appellants.


Decided: November 13, 2018

Sweeny, J.P., Manzanet–Daniels, Gische, Gesmer, Singh, JJ. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants. Mitchell Dranow, Sea Cliff, for respondent.

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about September 26, 2017, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing plaintiff's claims that he suffered a serious injury involving “significant” and “permanent consequential” limitation of use of his lumbar spine and a 90/180–day injury under Insurance Law § 5102(d), unanimously modified, on the law, to grant the motion with respect to plaintiff's claim of “permanent consequential” limitation of use of his lumbar spine and his 90/180–day claim, and otherwise affirmed, without costs.

Defendants met their prima facie burden of demonstrating lack of serious injury to plaintiff's lumbar spine by submitting the expert reports of a neurologist and orthopedist who found near normal range of motion and opined that plaintiff's subjective complaints were not substantiated by clinical objective findings (see Moore–Brown v. Sofi Hacking Corp., 151 A.D.3d 567, 57 N.Y.S.3d 38 [1st Dept. 2017];  Reyes v. Se Park, 127 A.D.3d 459, 460, 8 N.Y.S.3d 22 [1st Dept. 2015] ).  Defendants further showed that plaintiff's lumbar spine condition was not causally related to the March 2013 motor vehicle accident through the report of their radiologist, who opined that plaintiff's MRI showed multilevel degenerative disc disease (see Rabb v. Mohammed, 132 A.D.3d 527, 18 N.Y.S.3d 35 [1st Dept. 2015];  Young Kyu Kim v. Gomez, 105 A.D.3d 415, 962 N.Y.S.2d 127 [1st Dept. 2013] ).

In opposition, plaintiff raised a triable issue of fact as to the existence of an injury involving a “significant” limitation of use of his lumbar spine, but not as to a “permanent consequential” limitation of use injury (see Kang v. Almanzar, 116 A.D.3d 540, 984 N.Y.S.2d 42 [1st Dept. 2014];  Kone v. Rodriguez, 107 A.D.3d 537, 967 N.Y.S.2d 359 [1st Dept. 2013] ).  Plaintiff's orthopedic surgeon, who performed a discectomy procedure in May 2014, sufficiently addressed the findings of degeneration by opining that the MRI films did not show degeneration and that plaintiff's acute onset lumbar condition was causally related to the accident (see Rabb v. Mohammed, 132 A.D.3d at 528, 18 N.Y.S.3d 35;  Young Kyu Kim v. Gomez, 105 AD3d at 415, 962 N.Y.S.2d 127).  Plaintiff also demonstrated the existence of significant limitations in his lumbar spine range of motion, both shortly after the accident and nine months later, through the reports of his orthopedic surgeon and his post-accident treatment records (see Castillo v. Abreu, 132 A.D.3d 520, 521, 18 N.Y.S.3d 378 [1st Dept. 2015] ).  Since the medical records were submitted by defendants and were properly before the court, plaintiff was entitled to rely on them (see Wenegieme v. Harriott, 157 A.D.3d 412, 68 N.Y.S.3d 432 [1st Dept. 2018] ).

However, plaintiff failed to provide a reasonable explanation for his complete cessation of treatment for his lumbar spine conditions after the May 2014 procedure.  Plaintiff's claim that he ceased treatment because of an inability to pay due to a lack of no-fault insurance, is unpersuasive in light of his testimony that he had other insurance (see Alverio v. Martinez, 160 A.D.3d 454, 74 N.Y.S.3d 525 [1st Dept. 2018];  Vila v. Foxglove Taxi Corp., 159 A.D.3d 431, 71 N.Y.S.3d 69 [1st Dept. 2018] ).  The cessation of treatment renders the opinion of a nontreating physician, based on an examination of plaintiff in December 2016, speculative concerning the permanence and causation of plaintiff's condition at that time (id. at 432, 71 N.Y.S.3d 69;  see Merrick v. Lopez–Garcia, 100 A.D.3d 456, 954 N.Y.S.2d 25 [1st Dept. 2012] ).

Plaintiff's allegation in his bill of particulars that he was confined to home and bed for just eight weeks after the accident, defeats his 90/180–day claim (see Streeter v. Stanley, 128 A.D.3d 477, 478, 10 N.Y.S.3d 11 [1st Dept. 2015] ).