Opinion
11919 Index No. 158912/2012 Case No. 2017-1443
10-01-2020
Phyllis Yvonne STICKNEY, Plaintiff–Appellant, v. Muhammad AKHAR, et al., Defendants–Respondents, Ahmed Ghowin, et al., Defendants.
Zwirn & Saulino, PC, Brooklyn (Warren Zwirn of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondents.
Zwirn & Saulino, PC, Brooklyn (Warren Zwirn of counsel), for appellant.
Marjorie E. Bornes, Brooklyn, for respondents.
Kapnick, J.P., Gesmer, González, Scarpulla, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about March 24, 2016, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the claims of serious injury to the cervical and lumbar spine and the claim of a 90/180-day 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 her cervical or lumbar spine by submitting a neurologist's affirmed report finding that plaintiff had normal range of motion and that her alleged injuries had resolved (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 102 N.Y.S.3d 588 [1st Dept. 2019] ; Holloman v American United Transp. Inc., 162 A.D.3d 423, 75 N.Y.S.3d 26 [1st Dept. 2018] ). Defendants also submitted an affirmed report by an emergency medicine specialist who reviewed plaintiff's emergency room records and opined that those records were inconsistent with plaintiff's claimed injuries (see Morrison v. Santana, 183 A.D.3d 456 121 N.Y.S.3d 858 [1st Dept. 2020] ; De Los Santos v. Basilio, 176 A.D.3d 544, 112 N.Y.S.3d 20 [1st Dept. 2019] ).
In opposition, plaintiff failed to raise an issue of fact. Although her physician found recent limitations in range of motion of her cervical and lumbar spine, his opinion that the alleged injuries were caused by the accident was conclusory. He did not address the degenerative conditions found in plaintiff's own radiologist's MRI reports or explain why plaintiff's current symptoms were not related to the preexisting conditions (see 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] ; Williams v. Laura Livery Corp., 176 A.D.3d 557, 112 N.Y.S.3d 16 [1st Dept. 2019] ).
Defendants are entitled to the dismissal of the 90/180-day claim in the absence of evidence of a causal connection between plaintiff's neck and back conditions and the subject accident (see Diakite v. PSAJA Corp., 173 A.D.3d at 536, 102 N.Y.S.3d 588 ). Moreover, according to plaintiff's testimony, she was confined to home for only about six weeks 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] ).