Opinion
06-15-2017
Laura MOORE–BROWN, Plaintiff–Appellant, v. SOFI HACKING CORP., et al., Defendants–Respondents, The Hebrew Home for the Aged at Riverdale, et al., Defendants.
Mitchell Dranow, Sea Cliff, for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for respondents.
Mitchell Dranow, Sea Cliff, for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for respondents.
TOM, J.P., RENWICK, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered November 24, 2015, which, to the extent appealed from as limited by the briefs, granted the motion of defendants Sofi Hacking Corp. and Mohammed Sakaria for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate a serious injury to her cervical spine within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants made a prima facie showing that plaintiff did not sustain a serious injury to her cervical spine by submitting the expert report of an orthopedist, who found full range of motion and opined that plaintiff's alleged injuries had resolved (see Birch v. 31 N. Blvd., Inc., 139 A.D.3d 580, 32 N.Y.S.3d 142 [1st Dept.2016] ). Those findings were consistent with the conclusion of defendants' neurologist who found no neurological deficits and a limitation in one plane of range of motion, which did not undermine his conclusion that plaintiff suffered no permanent injury as a result of the accident (see Paduani v. Rodriguez, 101 A.D.3d 470, 955 N.Y.S.2d 48 [1st Dept.2012] ; Sone v. Qamar, 68 A.D.3d 566, 889 N.Y.S.2d 845 [1st Dept.2009] ). Defendants' neurologist also relied on plaintiff's MRI report, which showed preexisting degenerative disc disease in her cervical spine, in concluding that she suffered no traumatic injury causally related to the accident (see Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 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] ; Colon v. Vincent Plumbing & Mech. Co., 85 A.D.3d 541, 925 N.Y.S.2d 458 [1st Dept.2011] ). Defendants further demonstrated an absence of causation through the report of an expert in emergency room medicine, who opined that plaintiff's post-accident medical records showing no complaints of neck pain and a normal cervical exam, were inconsistent with any claim of traumatic injury to her cervical spine (see Frias v. Gonzalez–Vargas, 147 A.D.3d 500, 501, 47 N.Y.S.3d 30 [1st Dept.2017] ). Furthermore, plaintiff testified that she did not seek treatment for her claimed cervical spine injuries from a neurologist until some eight months after the accident, which is "too remote in time to establish a causal relationship" between her claimed injuries and the accident ( Jones v. MTA Bus Co., 123 A.D.3d 614, 615, 999 N.Y.S.2d 68 [1st Dept.2014] ; see Henchy v. VAS Express Corp., 115 A.D.3d 478, 479, 981 N.Y.S.2d 418 [1st Dept.2014] ).
In opposition, plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury to her cervical spine causally related to the accident (see Mayo v. Kim, 135 A.D.3d 624, 625, 24 N.Y.S.3d 58 [1st Dept.2016] ).