Opinion
2014-06-19
Florentino CAMILO, Plaintiff–Appellant, v. VILLA LIVERY CORP., et al., Defendants–Respondents, Hazel R. Mercedes, Defendant.
Law Office of Ryan S. Goldstein, PLLC, Bronx (Ryan S. Goldstein of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondents.
Law Office of Ryan S. Goldstein, PLLC, Bronx (Ryan S. Goldstein of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondents.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered August 26, 2013, which granted defendants' motions for summary judgment dismissing plaintiff's complaint for failure to establish a serious injury pursuant to Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants made a prima facie showing that plaintiff did not suffer a significant or permanent limitation of use of the left shoulder or spine. Defendants submitted the affirmed report of an orthopedic surgeon who examined plaintiff's allegedly injured body parts, listed the tests he performed and recorded range-of-motion measurements, expressed in numerical degrees and the corresponding normal values, and found normal range of motion in the spine and that the left shoulder and uninjured right shoulder had the same limitations ( see Frias v. Son Tien Liu, 107 A.D.3d 589, 967 N.Y.S.2d 382 [1st Dept.2013];see also Martinez v. Goldmag Hacking Corp., 95 A.D.3d 682, 683, 944 N.Y.S.2d 555 [1st Dept.2012] ). The orthopedic surgeon's finding of minor limitations in range of motion in two planes does not defeat defendants' showing ( see Tuberman v. Hall, 61 A.D.3d 441, 876 N.Y.S.2d 394 [1st Dept.2009] ). Defendants also submitted the affirmed report of their radiologist, who, along with their orthopedic surgeon, reviewed plaintiff's MRIs, and opined that plaintiff's injuries were degenerative in nature and not causally related to the accident ( see Tuberman, 61 A.D.3d at 441, 876 N.Y.S.2d 394).
In opposition, plaintiff failed to provide any medical evidence concerning his condition contemporaneous to the accident ( see Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011];see also Rosa v. Mejia, 95 A.D.3d 402, 403–404, 943 N.Y.S.2d 470 [1st Dept.2012] ). Although the affirmation of plaintiff's orthopedic surgeon shows range-of-motion limitations, he did not examine plaintiff until approximately 15 months after the accident, which is insufficient to raise an issue of fact as to causation ( Linton v. Gonzales, 110 A.D.3d 534, 535, 974 N.Y.S.2d 350 [1st Dept.2013];Mejia, 95 A.D.3d at 404, 943 N.Y.S.2d 470). The surgeon also failed to address evidence of degeneration in the MRI reports of the cervical and lumbar spine ( see Rosa, 95 A.D.3d at 404, 943 N.Y.S.2d 470), or his own findings that the right shoulder, which plaintiff does not claim suffered injury in the accident, had greater limitations in range of motion than the uninjured left shoulder.
Given the lack of evidence of causation, the court properly
dismissed plaintiff's 90/180–day injury claim ( see Linton, 110 A.D.3d at 535, 974 N.Y.S.2d 350).
We have considered plaintiff's remaining contentions and find them unavailing. TOM, J.P., MOSKOWITZ, DeGRASSE, MANZANET–DANIELS, CLARK, JJ., concur.