Opinion
10172 Index 21588/14E
10-22-2019
Tanaya JENKINS, Plaintiff–Appellant, v. LIVO CAR INC., et al., Defendants–Respondents.
Mitchell Dranow, Sea Cliff, for appellant. Robert D. Grace, Brooklyn, for respondents.
Mitchell Dranow, Sea Cliff, 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 on or about November 15, 2018, which granted defendants' motion for summary judgment dismissing the complaint on the threshold issue of serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, the motion denied as to plaintiff's claims of permanent consequential and significant limitations of use of her cervical spine and lumbar spine, and otherwise affirmed, without costs.
Plaintiff alleges that she sustained serious injuries to her knees, cervical spine and lumbar spine and was unable to return to work for a year, as the result of a motor vehicle accident that occurred while riding in defendants' taxi. Defendants demonstrated prima facie that plaintiff did not sustain any serious injury causally related to that accident by submitting a radiologist's opinion that she had preexisting degenerative conditions (see Fathi v. Sodhi, 146 A.D.3d 445, 44 N.Y.S.3d 406 [1st Dept. 2017] ) and an emergency medicine physician's opinion that her post-accident emergency room records were inconsistent with the injuries claimed (see Streety v. Toure, 173 A.D.3d 462, 462, 103 N.Y.S.3d 438 [1st Dept. 2019] ). In addition, with respect to plaintiff's claims that she sustained bilateral knee injuries, defendants relied on their orthopedist's review of plaintiff's doctors' operative and MRI reports, which acknowledged degenerative conditions, as well as her testimony concerning a prior left knee injury (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] ).
Plaintiff raised a triable issue of fact as to her lumbar and cervical spine conditions through the reports of her treating physician, who opined that those conditions were causally related to the accident. Since plaintiff's own medical records did not reveal any degenerative conditions in her spine, she was not required to submit evidence from a medical expert detailing why degenerative conditions were not the cause of her reported symptoms (see Fathi v. Sodhi at 446, ; Bonilla v. Vargas–Nunez, 147 A.D.3d 461, 46 N.Y.S.3d 594 [1st Dept. 2017] ; Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 915 N.Y.S.2d 529 [1st Dept. 2011] ). Her physician found limitations in range of motion shortly after the accident and on subsequent and recent examinations (see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ; Rosa v. Mejia, 95 A.D.3d 402, 943 N.Y.S.2d 470 [1st Dept. 2012] ). In response to defendant's argument, plaintiff also raised a triable issue of fact about whether a gap in treatment occurred (see Ramkumar v. Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 907, 976 N.Y.S.2d 1, 998 N.E.2d 801 [2013] ). She claimed that her no-fault benefits ended and she was now on Medicaid, but her current doctors did not accept it (see Swift v. New York Tr. Auth., 115 A.D.3d 507, 508, 981 N.Y.S.2d 706 [1st Dept. 2014] [gap explained because plaintiff was seeking doctors who accepted Medicaid] ).
However, as to her claimed knee injuries, plaintiff failed to submit medical evidence addressing the findings of degeneration in her own medical records and explaining why the knee conditions were causally related to the accident (see Alvarez at 1044, 993 N.Y.S.2d 1, 993 N.Y.S.2d 1 ). Further, as to the left knee, plaintiff's doctor failed to address the effect of a prior motor vehicle accident, in which plaintiff's left knee was injured and required surgery ( id. ; see also Pines v. Lopez, 88 A.D.3d 545, 931 N.Y.S.2d 578 [1st Dept. 2011] ).
Defendants made a prima facie showing of entitlement to summary judgment on plaintiff's 90/180 claim by submitting evidence that plaintiff's injuries were not causally related to the accident (see Henchy v. VAS Express Corp., 115 A.D.3d 478, 480, 981 N.Y.S.2d 418 [1st Dept. 2014] ). In light of plaintiff's failure to raise a triable issue of fact concerning her claimed knee injuries, as well as the evidence that she was ambulatory in the period after the accident, her doctor's medical notes and disability certificates were too general to support a 90/180 day claim (see Morris v. Ilya Cab Corp., 61 A.D.3d 434, 876 N.Y.S.2d 61 [1st Dept. 2009] ; see also Gorden v. Tibulcio, 50 A.D.3d 460, 463, 855 N.Y.S.2d 515 [1st Dept. 2008] ).
We have considered the remaining arguments and find them unavailing.