Opinion
498 CA 21-01020
07-08-2022
Jaimere HENDERSON, Plaintiff-Respondent, v. Shaiman CUYLER, Defendant-Appellant.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AALOK J. KARAMBELKAR OF COUNSEL), FOR DEFENDANT-APPELLANT. ERIC P. SMITH, LIVERPOOL, FOR PLAINTIFF-RESPONDENT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AALOK J. KARAMBELKAR OF COUNSEL), FOR DEFENDANT-APPELLANT.
ERIC P. SMITH, LIVERPOOL, FOR PLAINTIFF-RESPONDENT.
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when he was struck by a vehicle operated by defendant. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident. Defendant now appeals from an order insofar as it denied the motion with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury. We agree with defendant that Supreme Court should have granted his motion in its entirety, and we reverse the order insofar as appealed from.
"On a motion for summary judgment dismissing a complaint that alleges serious injury under Insurance Law § 5102 (d), the defendant bears the initial burden of establishing by competent medical evidence that [the] plaintiff did not sustain a serious injury caused by the accident" ( Gonyou v. McLaughlin , 82 A.D.3d 1626, 1627, 918 N.Y.S.2d 922 [4th Dept. 2011] [internal quotation marks omitted]; see Cohen v. Broten , 197 A.D.3d 949, 950, 150 N.Y.S.3d 656 [4th Dept. 2021] ; Lamar v. Anastasi , 188 A.D.3d 1637, 1637, 135 N.Y.S.3d 717 [4th Dept. 2020] ). We agree with defendant that he met his initial burden on the motion by submitting the affidavit of a physician who reviewed plaintiff's imaging studies, medical records and medical history and opined that plaintiff sustained only "temporary soft tissue contusions (bruises) of the left hip and ribs as a result of the accident," which do not constitute serious injury (see e.g. Kracker v. O'Connor , 158 A.D.3d 1324, 1325, 70 N.Y.S.3d 730 [4th Dept. 2018] ; Williams v. Jones , 139 A.D.3d 1346, 1347, 31 N.Y.S.3d 348 [4th Dept. 2016] ), and that any other residual alleged injuries were caused by "pre-existing conditions" (see Perl v. Meher , 18 N.Y.3d 208, 218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ; Lamar , 188 A.D.3d at 1637-1638, 135 N.Y.S.3d 717 ). Inasmuch as defendant met his initial burden on the motion, the burden shifted to plaintiff to "come forward with evidence indicating a serious injury causally related to the accident" ( Pommells v. Perez , 4 N.Y.3d 566, 579, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ). We agree with defendant that plaintiff failed to raise a triable issue of fact sufficient to defeat the motion. Plaintiff's expert, who did not physically examine plaintiff until six years after the accident, "failed to adequately address plaintiff's preexisting ... condition and other medical problems, and did not provide any foundation or objective medical basis supporting the conclusions [he] reached" ( Franchini v. Palmieri , 1 N.Y.3d 536, 537, 775 N.Y.S.2d 232, 807 N.E.2d 282 [2003] ; see Hartman-Jweid v. Overbaugh , 70 A.D.3d 1399, 1400, 894 N.Y.S.2d 784 [4th Dept. 2010] ). More specifically, in light of the six-year gap in treatment, the opinion of plaintiff's expert chiropractor that the range of motion limitations were causally related to the subject accident is "speculative" ( Alverio v. Martinez , 160 A.D.3d 454, 455, 74 N.Y.S.3d 525 [1st Dept. 2018] ). Plaintiff's expert chiropractor never explained how he reached the conclusion that the accident caused the injuries he observed six years later (see generally Gaddy v. Eyler , 79 N.Y.2d 955, 958, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ) and never addressed the findings of defendant's expert to the contrary (see McConnell v. Freeman , 52 A.D.3d 1190, 1191, 859 N.Y.S.2d 831 [4th Dept. 2008] ; Wallingford v. Perez , 11 A.D.3d 390, 391, 785 N.Y.S.2d 42 [1st Dept. 2004] ). "Such failure to address crucial facts relevant to causation warrants a finding" that the accident did not cause any of the alleged serious physical injuries that the chiropractor documented six years later ( Wallingford , 11 A.D.3d at 391, 785 N.Y.S.2d 42 ; see Rivera v. Francis , 7 A.D.3d 690, 691, 776 N.Y.S.2d 840 [2d Dept. 2004] ).