Opinion
2014-05-20
Anthony FARMER, Plaintiff–Appellant, v. VENTKATE INC., Defendant–Respondent, “John Doe,” etc., Defendant.
Joshua E. Bardavid, New York, for appellant. Majorie E. Bornes, Brooklyn, for respondent.
Joshua E. Bardavid, New York, for appellant. Majorie E. Bornes, Brooklyn, for respondent.
GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, FREEDMAN, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered November 27, 2012, which, to the extent appealed from as limited by the briefs, granted defendant Ventkate Inc.'s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff alleges that he was struck by defendant's taxi, resulting in injuries to his right knee that required surgery. Defendant established prima facie that plaintiff did not sustain a serious injury causally related to the accident, by submitting the affirmed reports of an orthopedist, who concluded that plaintiff had preexisting osteoarthritis for which he required arthroplasty, unrelated to the accident, and a radiologist, who opined that the post-accident X rays showed severe osteoarthritis and no evidence of traumatic injury ( see Batista v. Porro, 110 A.D.3d 609, 973 N.Y.S.2d 213 [1st Dept.2013];Paduani v. Rodriguez, 101 A.D.3d 470, 471, 955 N.Y.S.2d 48 [1st Dept.2012] ).
In opposition, plaintiff failed to raise an issue of fact as to causation or aggravation of the preexisting arthritic condition of his right knee. His orthopedic surgeon concurred that the X rays showed advanced degenerative changes, including complete loss of joint space, and diagnosed him with right knee osteoarthritis before and after surgery. In light of these findings, he provided “no objective basis or reason, other than the history provided by plaintiff,” in support of his belief that the accident “likely” exacerbated plaintiff's preexisting condition ( Shu Chi Lam v. Wang Dong, 84 A.D.3d 515, 516, 922 N.Y.S.2d 381 [1st Dept.2011];see Suarez v. Abe, 4 A.D.3d 288, 289, 772 N.Y.S.2d 317 [1st Dept.2004] ). Moreover, plaintiff offered no evidence of any injuries different from his undisputed preexisting arthritic condition, and his surgeon “failed to otherwise explain why those preexisting conditions were ruled out as the cause of his current alleged limitations” ( Kamara v. Ajlan, 107 A.D.3d 575, 576, 968 N.Y.S.2d 45 [1st Dept.2013];Brand v. Evangelista, 103 A.D.3d 539, 540, 962 N.Y.S.2d 52 [1st Dept.2013] ).