Opinion
8631 Index 22846/15E
03-07-2019
Michael N. BOGLE, Plaintiff, Danisha Stephens, Plaintiff–Appellant, v. Jose Eugenio PAREDES, Defendant–Respondent.
Yadgarov & Associates, PLLC, New York (Ronald S. Ramo of counsel), for appellant. DeSena & Sweeney, LLP, Bohemia (Shawn P. O'Shaughnessy of counsel), for respondent.
Yadgarov & Associates, PLLC, New York (Ronald S. Ramo of counsel), for appellant.
DeSena & Sweeney, LLP, Bohemia (Shawn P. O'Shaughnessy of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Tom, Kahn, Gesmer, JJ.
Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered August 16, 2017, which to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint insofar as it alleges that plaintiff Danisha Stephens suffered a serious injury in the "permanent consequential" or "significant" limitation of use categories within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Stephens alleged that, as a result of an accident involving defendant's car, she suffered serious injuries to her cervical spine, lumbar spine, wrists and right knee for which she underwent three to six months of treatment. Defendant satisfied his prima facie burden as to all the claimed injuries by submitting the reports of an orthopedist, a radiologist and a neurologist, who found, inter alia, that plaintiff had full range of motion and negative test results in her cervical and lumbar spine (see Alverio v. Martinez , 160 A.D.3d 454, 74 N.Y.S.3d 525 [1st Dept. 2018] ), that sprains and/or contusions to her spinal column, chest, wrists and knee were resolved, and no evidence of acute causally related injury (see Hayes v. Gaceur , 162 A.D.3d 437, 439, 79 N.Y.S.3d 119 [1st Dept. 2018] ).
In opposition, plaintiff failed to raise an issue of fact. Plaintiff submitted an affirmed report of a doctor who examined her one time, over four years after the accident, but did not address her prior accident ( Ogando v. National Frgt., Inc. , 166 A.D.3d 569, 570, 87 N.Y.S.3d 159 [1st Dept. 2018] ) or provide admissible objective evidence of injuries (see Malupa v. Oppong , 106 A.D.3d 538, 539, 966 N.Y.S.2d 9 [1st Dept. 2013] ). Moreover, plaintiff failed to explain her complete cessation of treatment three to six months after the accident even though she had health insurance and saw a regular primary care doctor (see Pommells v. Perez , 4 N.Y.3d 566, 576, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ; Alverio, 160 A.D.3d at 455, 74 N.Y.S.3d 525 ). The unexplained four-year period of time in which plaintiff failed to seek treatment for any accident-related injuries renders the opinion of her medical expert "speculative as to the permanency, significance, and causation of the claimed injuries" ( Vila v. Foxglove Taxi Corp. , 159 A.D.3d 431, 432, 71 N.Y.S.3d 69 [1st Dept. 2018] ; see Gaddy v. Eyler , 79 N.Y.2d 955, 957–958, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ; Frias v. Son Tien Liu , 107 A.D.3d 589, 590, 967 N.Y.S.2d 382 [1st Dept. 2013] ).