Opinion
05-11-2017
Samuel A. JENKINS, Plaintiff–Appellant, v. Patrick C. MURTAGH, Defendant–Respondent, John Doe, Defendant.
Mitchell Dranow, Sea Cliff, for appellant. Richard T. Lau & Associates, Jericho (Christine A. Hilcken of counsel), for respondent.
Mitchell Dranow, Sea Cliff, for appellant.
Richard T. Lau & Associates, Jericho (Christine A. Hilcken of counsel), for respondent.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered May 13, 2016, which granted the motion of defendant Patrick C. Murtagh for summary judgment dismissing the complaint due to plaintiff's inability to meet the serious injury threshold of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendant established entitlement to judgment as a matter of law. Defendant submitted, inter alia, plaintiff's medical records, including a CT scan performed about five months before the accident which found multiple bulging discs and a possible herniated disc, and a report of his chiropractor that found range of motion within normal limits one month after the accident (see Cattouse v. Smith, 146 A.D.3d 670, 45 N.Y.S.3d 453 [1st Dept.2017] ).
In opposition, plaintiff failed to raise a triable issue of fact as to whether limitations found by his expert three years after the accident were causally related to the accident, in light of the preexisting conditions shown in plaintiff's medical records (see Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509, 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] ). Plaintiff's expert did not explain why the alleged limitations were attributable to the accident, as opposed to the preexisting conditions (see Kamara v. Ajlan, 107 A.D.3d 575, 576, 968 N.Y.S.2d 45 [1st Dept.2013] ). Furthermore, the expert's opinion as to causation is speculative, because he failed to reconcile his findings with the earlier full range of motion findings by plaintiff's chiropractor (see Colon v. Torres, 106 A.D.3d 458, 965 N.Y.S.2d 90 [1st Dept.2013] ).
FRIEDMAN, J.P., MOSKOWITZ, MANZANET–DANIELS, KAPNICK, WEBBER, JJ., concur.