Opinion
11994 Index No. 304887/14 Case No. 2019-03637
10-08-2020
Luis PEREZ–VARGAS, Plaintiff–Appellant, v. Jon–Luc Bonano AARRON, Defendant–Respondent.
Richard C. Bell, New York, for appellant. Sobel Pevzner, LLC, New York (Paul X. Lima of counsel), for respondent.
Richard C. Bell, New York, for appellant.
Sobel Pevzner, LLC, New York (Paul X. Lima of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Gesmer, Singh, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about July 5, 2019, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the claims of serious injury under Insurance Law § 5102(d) resulting in permanent consequential limitation of use and significant limitation of use of the cervical, thoracic, and lumbar spine, left shoulder, and right knee, unanimously modified, on the law, to deny the motion as to the claims of significant limitation of use, and otherwise affirmed, without costs.
Defendant failed to establish prima facie that plaintiff's claimed injuries were not causally related to the motor vehicle accident. He submitted a report by a radiologist who found that plaintiff's MRI films showed degenerative conditions in the spine, left shoulder and right knee, and no evidence of recent traumatic injury. However, he also submitted an expert orthopedic surgeon's report that was internally inconsistent as to whether plaintiff's claimed injuries were causally related to the accident and a report by a no-fault examiner who examined plaintiff after the procedures and concluded that plaintiff's conditions were causally related to the accident. In addition, defendant submitted inadmissible evidence of subsequent accidents, which in any event did not indicate injury to the body parts at issue. Thus, the burden of proof did not shift to plaintiff on the issue of causation (see Pouchie v. Pichardo, 173 A.D.3d 643, 644, 105 N.Y.S.3d 410 [1st Dept. 2019] ; Johnson v. Salaj, 130 A.D.3d 502, 502–503, 13 N.Y.S.3d 418 [1st Dept. 2015] ).
With respect to the injuries claimed, the no-fault examiner found normal ranges of motion; the orthopedic surgeon found decreased ranges of motion but opined that this was subjective and "dependent on claimant effort," noting that there were no objective findings on examination. Defendant also submitted plaintiff's testimony that after undergoing arthroscopic procedures on his lumbar spine, left shoulder and right knee, he stopped feeling pain and, despite having health insurance, ceased treatment; this requires explanation by plaintiff (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
In opposition, plaintiff failed to adequately explain his complete cessation of treatment after he underwent the three arthroscopic surgical procedures. He offered one physician's belated statement that further treatment of the right knee and left shoulder would have been palliative only (see id. at 576, 797 N.Y.S.2d 380, 830 N.E.2d 278 ). However, this statement fails to address plaintiff's admission that he no longer felt pain in his spine, knee and shoulder after the surgical treatment and therapy, which indicates that his injuries had resolved and no further treatment of any kind was needed (see Alverio v. Martinez, 160 A.D.3d 454, 455, 74 N.Y.S.3d 525 [1st Dept. 2018] ). Plaintiff's cessation of treatment after undergoing the three surgical procedures renders his treating physicians' findings of permanency speculative (see Holmes v. Brini Tr. Inc., 123 A.D.3d 628, 628–629, 1 N.Y.S.3d 27 [1st Dept. 2014] ).
However, plaintiff raised an issue of fact as to whether he sustained non-permanent injuries, i.e., significant limitations of use, by submitting his treating physicians' reports finding limitations in range of motion of the spine and shoulder and qualitative limitation in use of the knee and opining that these limitations were causally related to the accident and required surgical intervention (see Arias v. Martinez, 176 A.D.3d 548, 549, 112 N.Y.S.3d 18 [1st Dept. 2019] ; see generally Vasquez v. Almanzar, 107 A.D.3d 538, 539, 967 N.Y.S.2d 361 [1st Dept. 2013] ). If a jury determines that plaintiff has met the threshold for serious injury, it may award damages for any other injuries that are causally related to the accident, even if those injuries do not meet the serious injury threshold ( Arias, 176 A.D.3d at 549, 112 N.Y.S.3d 18 ).