Opinion
2012-12-20
Stewart DORRIAN, Plaintiff–Appellant, v. Criolis CANTALICIO, Defendant–Respondent.
Krentsel & Guzman, LLP, New York (Alex Rybakov of counsel), for appellant. Richard T. Lau & Associates, Jericho (Kathleen E. Fioretti of counsel), for respondent.
Krentsel & Guzman, LLP, New York (Alex Rybakov of counsel), for appellant. Richard T. Lau & Associates, Jericho (Kathleen E. Fioretti of counsel), for respondent.
TOM, J.P., SWEENY, DEGRASSE, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered October 11, 2011, which granted defendants' motion for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), and denied plaintiff's cross motion for partial summary judgment as moot, unanimously affirmed, without costs.
Plaintiff alleged that, as the result of a rear-end car accident, he sustained injuries to his cervical and lumbar spine and left knee. He acknowledged having suffered prior back injuries in one or more of three prior motor vehicle accidents and a work-place accident, and that he had left knee surgery following one of the prior accidents.
Defendant met his prima facie burden by submitting the affirmed reports of an orthopedist who found that plaintiff had full range of motion in all affected parts, and of a radiologist who found degeneration in all claimed injured body parts ( see Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 920 N.Y.S.2d 24 [1st Dept.2011] ), as well as the evidence of prior accidents which resulted in injuries to his back and knees ( see Brewster v. FTM Servo, Corp., 44 A.D.3d 351, 352, 844 N.Y.S.2d 5 [1st Dept.2007] ).
In opposition, plaintiff failed to raise an issue of fact. His treating physician measured normal range of motion in his cervical spine, with only minor limitations in one plane, at several examinations months after the accident ( see Phillips v. Tolnep Limo Inc., 99 A.D.3d 534, 951 N.Y.S.2d 870 [1st Dept.2012];Canelo v. Genolg Tr., Inc., 82 A.D.3d 584, 919 N.Y.S.2d 27 [1st Dept.2011] ), and offered no explanation for the decline of plaintiff's cervical spine range of motion at his most recent examination ( see Thomas v. City of New York, 99 A.D.3d 580, 953 N.Y.S.2d 15 [1st Dept.2012] ). This failure to explain the inconsistencies between her earlier finding of near full range of motion and her present findings of deficits entitles defendant to summary judgment ( see id.;Jno–Baptiste v. Buckley, 82 A.D.3d 578, 578–79, 919 N.Y.S.2d 22 [1st Dept.2011] ).
As for the claimed left knee injury, plaintiff's physician found normal range of motion in the months following the accident and did not explain subsequent declines. Moreover, her opinion as to causation was inadequate in light of plaintiff's prior history of left knee surgery and defendant's expert's opinion that any tear was degenerative in origin ( see Pines v. Lopez, 88 A.D.3d 545, 931 N.Y.S.2d 578 [1st Dept.2011] ). Plaintiff's physician also failed to explain earlier improvements in lumbar range of motion, or to raise an issue of fact as to causation of that injury, since her opinion that plaintiff's lumbar injuries were caused by the accident was based on plaintiff's subjective statement that “he had recovered” from his three prior accidents, without reference to prior medical records or other medical evidence ( see McArthur v. Act Limo, Inc., 93 A.D.3d 567, 940 N.Y.S.2d 616 [1st Dept.2012];Style v. Joseph, 32 A.D.3d 212, 214, 820 N.Y.S.2d 26 [1st Dept.2006] ). Plaintiff did not plead a claim for exacerbation of prior injuries and, in any event, his physician did not provide any basis for determining the extent of any exacerbation of plaintiff's prior injuries ( see Suarez v. Abe, 4 A.D.3d 288, 772 N.Y.S.2d 317 [1st Dept. 2004] ).
Given the lack of serious injury, the issue of liability is academic ( see Hernandez v. Adelango Trucking, 89 A.D.3d 407, 408, 931 N.Y.S.2d 317 [1st Dept.2011] ).