Opinion
10157 Index 25778/14E
10-22-2019
Clarence WILLIAMS, Plaintiff–Appellant, v. LAURA LIVERY CORPORATION, et al., Defendants–Respondents.
Ikhilov & Associates, Brooklyn (Ryan F. Blackmer of counsel), for appellant. Robert D. Grace, Brooklyn, for respondents.
Ikhilov & Associates, Brooklyn (Ryan F. Blackmer of counsel), for appellant.
Robert D. Grace, Brooklyn, for respondents.
Renwick, J.P., Gische, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered April 17, 2019, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined in Insurance Law § 5102(d), unanimously affirmed, without costs.
Plaintiff alleges that he was riding his bicycle through an intersection when defendants' vehicle struck him in the right knee and knocked him to the ground. He complains of injuries to his right shoulder, right knee, neck, and lower back.
Defendants demonstrated prima facie that plaintiff did not sustain any serious injury causally related to the accident through the expert reports of a radiologist who found that plaintiff's X-rays and MRIs showed degenerative conditions and of an orthopedist who reviewed plaintiff's medical records and opined they showed longstanding chronic conditions, not causally related to the accident, without any evidence of acute or traumatic injury (see Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509, 509–510, 999 N.Y.S.2d 37 [1st Dept. 2014], affd 25 N.Y.3d 1222, 16 N.Y.S.3d 515, 37 N.E.3d 1159 [2015] ; 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] ). Contrary to plaintiff's argument, defendants' orthopedist could rely on plaintiff's unsworn medical records to satisfy their initial burden of showing that the plaintiff did not sustain a serious injury causally related to the accident (see Newton v. Drayton, 305 A.D.2d 303, 304, 760 N.Y.S.2d 38 [1st Dept. 2003] ; see also Pommells v. Perez, 4 N.Y.3d 566, 573, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
In opposition, plaintiff failed to raise an issue of fact. Some of the medical records and reports of his treating physicians contained a conclusory statement that the conditions were causally related to the accident, but none of them addressed the evidence of preexisting degenerative conditions shown in his own medical records or explained why they could not have been the cause of his conditions (see Auquilla v. Singh, 162 A.D.3d 463, 464, 78 N.Y.S.3d 323 [1st Dept. 2018] ; Alvarez, 120 A.D.3d at 1044, 993 N.Y.S.2d 1 ; cf. Fedorova v. Kirkland, 126 A.D.3d 624, 625–626, 5 N.Y.S.3d 428 [1st Dept. 2015] [plaintiff raised issue of fact through report of her surgeon who specifically addressed degenerative conditions of the knee and opined as to causation] ). Plaintiff's 90/180–day claim was correctly dismissed, given his deposition testimony that he was confined to his home for less than two weeks (see Frias v. Son Tien Liu, 107 A.D.3d 589, 590, 967 N.Y.S.2d 382 [1st Dept. 2013] ).