Opinion
2014-04-17
Sherry C. NICHOLAS, Plaintiff–Appellant, v. CABLEVISION SYSTEMS CORP., et al., Defendants–Respondents.
Phillips, Krantz & Associates, LLP, New York (Heath T. Buzin of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for respondents.
Phillips, Krantz & Associates, LLP, New York (Heath T. Buzin of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for respondents.
FRIEDMAN, J.P., SWEENY, ANDRIAS, GISCHE, CLARK, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered April 2, 2013, which granted defendants' motion for summaryjudgment dismissing the complaint on the serious injury threshold, and denied as moot plaintiff's cross motion for summary judgment as to liability, unanimously affirmed, without costs.
Defendants made a prima facie showing that plaintiff did not suffer a serious injury to her neck, back, or left knee as a result of the motor vehicle accident. They submitted the affirmed reports of an orthopedist who found normal ranges of motion in all body parts, and a neurologist who, while finding limitations in the lumbar spine, opined that MRI films of the spine showed nonspecific degenerative conditions unrelated to the accident ( seeInsurance Law § 5102[d]; Robinson v. Joseph, 99 A.D.3d 568, 952 N.Y.S.2d 187 [1st Dept.2012] ).
In opposition, plaintiff submitted her examining physician's report finding recent range-of-motion deficits. However, the physician failed to explain the inconsistencies between his earlier findings of almost full range of motion in her cervical and lumbar spine and his present findings of deficits ( see Santos v. Perez, 107 A.D.3d 572, 574, 968 N.Y.S.2d 43 [1st Dept.2013]; Colon v. Torres, 106 A.D.3d 458, 965 N.Y.S.2d 90 [1st Dept.2013] ). Nor did plaintiff's physicians address either the degeneration that defendants' neurologist found in the MRIs taken of the cervical and lumbar spine or the preexisting conditions of morbid obesity and scoliosis ( see Malupa v. Oppong, 106 A.D.3d 538, 966 N.Y.S.2d 9 [1st Dept.2013]; Rosa v. Mejia, 95 A.D.3d 402, 404–405, 943 N.Y.S.2d 470 [1st Dept.2012] ). The MRI of plaintiff's left knee was insufficient to provide objective medical evidence of any injury, and no other objective proof of a serious injury to the knee was submitted.
Moreover, plaintiff failed to offer a reasonable explanation for ceasing treatment, despite her physicians' recommendations of further treatment, which renders her expert's conclusions as to permanency and causation speculative for all body parts ( see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005];Merrick v. Lopez–Garcia, 100 A.D.3d 456, 954 N.Y.S.2d 25 [1st Dept.2012] ).
Defendants established prima facie that plaintiff did not sustain a serious injury of the 90/180–day category, since her own evidence showed that her claimed injuries were no bar to the performance of her usual pre-accident activities, and there is no evidence that her absence from work was medically determined as a result of the accident and not related to the bunion surgeries she had undergone shortly before and after the accident. That plaintiff missed more than 90 days of work is not determinative of a 90/180–day injury ( see Uddin v. Cooper, 32 A.D.3d 270, 820 N.Y.S.2d 44 [1st Dept.2006], lv. denied8 N.Y.3d 808, 834 N.Y.S.2d 89, 865 N.E.2d 1256 [2007] ).
Given the absence of serious injury, the issue of liability is academic ( see Hernandez v. Adelango Trucking, 89 A.D.3d 407, 931 N.Y.S.2d 317 [1st Dept.2011] ).