Opinion
12509 Index No. 21679/18E Case No. 2020-00884
12-01-2020
Miguel CABRERA, Plaintiff–Appellant, v. Faruque AHMED, Defendant–Respondent.
Goldstein & Handwerker, LLP, New York (Jason Levine of counsel), for appellant. Robert D. Grace, Brooklyn, for respondent.
Goldstein & Handwerker, LLP, New York (Jason Levine of counsel), for appellant.
Robert D. Grace, Brooklyn, for respondent.
Gische, J.P., Webber, Oing, Mendez, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about January 15, 2020, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing plaintiff's claims of serious injury to his right knee under Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendant met his prima facie burden by demonstrating that plaintiff's claimed right knee injury was not causally related to the subject accident, based on the orthopedist's review of plaintiff's own medical records, including an MRI report, which contained findings of degeneration, and the report of a radiologist, who reviewed the MRI scans and opined that they showed tricompartmental osteoarthritis, reflecting a degenerative breakdown of structural components of the right knee (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 536, 102 N.Y.S.3d 588 [1st Dept. 2019] ). Accordingly, the burden shifted to plaintiff to explain why the degeneration shown in his medical records was not the cause of his knee conditions for which he underwent arthroscopic surgery ( Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 993 N.Y.S.2d 1 [1st Dept. 2014], affd 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2015] ).
In opposition, plaintiff failed to raise a triable issue of fact. The opinion of his medical expert that the degeneration shown in plaintiff's MRI was noncontributory was conclusory and speculative (see Grate v. Rodrigues, 179 A.D.3d 440, 441–442, 117 N.Y.S.3d 32 [1st Dept. 2020] ; Diakite v. PSAJA Corp., 173 A.D.3d at 536, 102 N.Y.S.3d 588 ). The expert first examined plaintiff over two and half years after the accident, and the only medical records he reviewed were those following the accident (see Vaughan v. Baez, 305 A.D.2d 101, 101, 758 N.Y.S.2d 648 [1st Dept. 2003] ). His opinion was based only on plaintiff's self-reported history of no prior injuries, which is not the same as no prior symptoms (see Giap v. Hathi Son Pham, 159 A.D.3d 484, 486, 71 N.Y.S.3d 504 [1st Dept. 2018] ). It was not based on any objective evidence or medical records (see Grate, 179 A.D.3d at 441–442, 117 N.Y.S.3d 32 ).
Furthermore, the objective evidence fails to support a finding of serious injury, as the medical records from a few weeks after the accident revealed only mild limitations in right knee flexion and normal range of motion in extension (see Mendoza v. L. Two Go, 171 A.D.3d 462, 96 N.Y.S.3d 576 [1st Dept. 2019] ; Rose v. Tall, 149 A.D.3d 554, 52 N.Y.S.3d 339 [1st Dept. 2017] ).