Opinion
15159 Index No. 25974/17E Case No. 2021–02482
01-27-2022
Nicholes W. RODRIGUEZ, Plaintiff–Appellant, v. Rafael T. MOREL et al., Defendants–Respondents.
The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for appellant. Cartafalsa, Turpin & Lenoff, New York (Kristine M. Taylor of counsel), for respondents.
The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for appellant.
Cartafalsa, Turpin & Lenoff, New York (Kristine M. Taylor of counsel), for respondents.
Acosta, P.J., Renwick, Moulton, Scarpulla, Higgitt, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered April 16, 2021, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the significant limitation of use or 90/180-day categories of Insurance Law § 5102(d), unanimously affirmed, without costs.
Plaintiff alleges that he sustained injuries to his cervical spine, lumbar spine, and right shoulder in a motor vehicle accident that occurred in December 2016, as well as aggravation of preexisting degenerative conditions in those body parts. Defendants demonstrated prima facie that plaintiff did not sustain a causally related serious injury to those body parts by submitting evidence, including the affirmed reports of an orthopedic surgeon and neurologist, finding normal to near-normal range of motion in his cervical spine, lumbar spine, and bilateral shoulders (see Antepara v. Garcia , 194 A.D.3d 513, 513, 148 N.Y.S.3d 451 [1st Dept. 2021] ). In addition, defendants submitted evidence that plaintiff had been treated for injuries to his neck, back, and shoulder following a motor vehicle accident in January 2014 ( Turner v. Benycol Transp. Corp., 78 A.D.3d 506, 911 N.Y.S.2d 51 [1st Dept. 2010] ), and that MRIs taken after that accident showed that he had disc bulges in his lumbar and cervical spine and supraspinatus tendinosis in his left shoulder (see Cattouse v. Smith, 146 A.D.3d 670, 45 N.Y.S.3d 453 [1st Dept. 2017] ), thus shifting the burden to plaintiff to address the issue of causation (see Pommells v. Perez, 4 N.Y.3d 566, 572, 576, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ). Defendants also relied on plaintiff's bill of particulars and deposition testimony to show that he returned to work as a maintenance worker within a few weeks of the accident which defeats his claim based on the 90/180-day category (see Antepara, 194 A.D.3d at 514, 148 N.Y.S.3d 451 ).
In opposition, plaintiff failed to raise a triable issue of fact, as his medical experts failed to explain why the pre-existing conditions in plaintiff's spine and left shoulder were ruled out as the cause of his alleged limitations and they provided only conclusory assertions that his injuries were caused or aggravated by the subject accident (see Monahan v. Reyes, 184 A.D.3d 460, 123 N.Y.S.3d 828 [1st Dept. 2020] ; Ogando v. National Frgt., Inc., 166 A.D.3d 569, 570, 87 N.Y.S.3d 159 [1st Dept. 2018] ; Farmer v. Ventkate Inc., 117 A.D.3d 562, 562, 986 N.Y.S.2d 98 [1st Dept. 2014] ). Since plaintiff acknowledged sustaining injuries to his neck and back in the prior accident and the 2014 MRIs showed pre-existing findings in his spine and left shoulder, "it was incumbent upon plaintiff to present proof addressing the asserted lack of causation" ( Turner, 78 A.D.3d at 506, 911 N.Y.S.2d 51 ; see generally Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278 ). Since plaintiff failed to raise a triable issue of fact as to causation, his 90/180-day claim fails as well (see Sosa–Sanchez v. Reyes, 162 A.D.3d 414, 415, 75 N.Y.S.3d 27 [1st Dept. 2018] ).