Opinion
13290 Index No. 300971/14 Case No. 2019-5676
03-09-2021
Elder Omidio REYES–MENDEZ, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco LLP, New York ( Greg Freedman of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Anna W. Gottlieb of counsel), for Municipal respondents. James F. Butler & Associates, Jericho (Christine A. Hilcken of counsel), for Jose R. Antigua, respondent.
Pollack, Pollack, Isaac & DeCicco LLP, New York ( Greg Freedman of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Anna W. Gottlieb of counsel), for Municipal respondents.
James F. Butler & Associates, Jericho (Christine A. Hilcken of counsel), for Jose R. Antigua, respondent.
Gische, J.P., Singh, Moulton, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Ruben Franco, J.), entered on or about June 21, 2019, which granted defendants' motions for summary judgment dismissing the complaint alleging serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants established prima facie that plaintiff did not suffer a serious injury to his cervical or lumbar spine by submitting an orthopedist's affirmed report finding that plaintiff had normal range of motion and that his alleged injuries had resolved ( see Diakite v. PSAJA Corp., 173 A.D.3d 535, 102 N.Y.S.3d 588 [1st Dept. 2019] ). The orthopedist also opined that plaintiff's own reports of MRIs of his cervical spine, lumbar spine, and left shoulder showed degenerative conditions not causally related to the accident ( see Grate v. Rodrigues, 179 A.D.3d 440, 441, 117 N.Y.S.3d 32 [1st Dept. 2020] ). In addition, defendant Antigua submitted plaintiff's own emergency room records, which showed that plaintiff was diagnosed only with a knee contusion and that there were no findings in the hospital of injury to his neck, back, or shoulders ( see Bonilla v. Bathily, 177 A.D.3d 407, 408, 111 N.Y.S.3d 18 [1st Dept. 2019], lv denied 35 N.Y.3d 918, 2020 WL 6855589 [2020] ).
In opposition, plaintiff failed to raise an issue of fact by submitting an affirmed report of a doctor who examined him almost four years after the accident, which is too remote to raise an inference that the limitations were causally related to the accident, and no evidence of contemporaneous treatment or limitations (see Camilo v. Villa Livery Corp., 118 A.D.3d 586, 587, 987 N.Y.S.2d 164 [1st Dept. 2014] ; Jung Ung Moon v. Kumbee Ree P Some, 189 A.D.3d 628, 629–630, 139 N.Y.S.3d 24 [1st Dept. 2020] ). Moreover, the medical expert did not address the findings in plaintiff's MRI reports of degenerative conditions ( see Grate v. Rodrigues, 179 A.D.3d at 441, 117 N.Y.S.3d 32 ).
Defendants are entitled to the dismissal of the 90/180-day claim in the absence of evidence of a causal connection between plaintiff's conditions and the accident ( see Diakite v. PSAJA Corp., 173 A.D.3d at 536, 102 N.Y.S.3d 588 ). Moreover, plaintiff's bill of particulars and deposition testimony indicate that he was confined to home for only approximately three days after the accident ( see Tejada v. LKQ Hunts Point Parts, 166 A.D.3d 436, 437–438, 88 N.Y.S.3d 156 [1st Dept. 2018] ).