Opinion
6475 Index 20857/12E
05-08-2018
Mark HESSING, Plaintiff–Appellant, v. Katherine L. CARROLL, Defendant–Respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Law Offices of John Trop, Yonkers (David Holmes of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Law Offices of John Trop, Yonkers (David Holmes of counsel), for respondent.
Sweeny, J.P., Renwick, Mazzarelli, Gesmer, Singh, JJ.
Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered January 19, 2017, which granted defendant's motion for summary judgment dismissing the complaint based on plaintiff's inability to meet the serious injury threshold of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendant met her initial burden of showing the absence of a triable issue on whether plaintiff had suffered a "permanent consequential" or "significant" limitation of use of his cervical spine, by submitting the affirmed report of her radiologist who found that plaintiff's MRI revealed degenerative disc disease and no evidence of traumatic injury. Moreover, defendant relied on plaintiff's own medical records, which also reflected findings of degenerative disc disease or cervical arthrosis. His medical records further showed that he had full range of motion and resumed rigorous daily cross-training shortly after the accident, and, after several months of physical therapy, did not seek any treatment for his cervical spine condition in the following four years. The burden thus shifted to plaintiff to address the evidence of a preexisting degenerative condition (see Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509, 510, 999 N.Y.S.2d 37 [1st Dept. 2014], affd 25 N.Y.3d 1222, 16 N.Y.S.3d 515, 37 N.E.3d 1159 [2015] ; 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] ), and to provide a reasonable explanation for his cessation of treatment ( Pommells v. Perez, 4 N.Y.3d 566, 576–577, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
In opposition to defendant's prima facie showing, plaintiff failed to raise an issue of fact as to whether his cervical spine condition was causally related to the accident or constituted a serious injury. Plaintiff presented the opinion of a physician who examined him years after the accident and found range of motion deficits, which he attributed to cervical disc herniations caused by the accident. However, plaintiff's expert failed to causally connect these limitations or injuries to the accident, since he did not address or contest the findings in plaintiff's own medical records that he suffered from cervical arthrosis, or degenerative disc disease (see Franklin v. Gareyua, 136 A.D.3d 464, 465, 24 N.Y.S.3d 304 [1st Dept. 2016], affd 29 N.Y.3d 925, 49 N.Y.S.3d 651, 71 N.E.3d 1218 [2017] ). Faced with these findings, plaintiff's examining physician's failure to explain why the accident, and not the degeneration, caused his condition, renders the opinion speculative, and entitles defendant to summary judgment (see Rivera at 510, 999 N.Y.S.2d 37 ). Plaintiff also failed to provide a reasonable explanation for his cessation of treatment, which supports the conclusion that he did not sustain a serious injury to his cervical spine (see Cattouse v. Smith, 146 A.D.3d 670, 672, 45 N.Y.S.3d 453 [1st Dept. 2017] ).