Opinion
7752 Index 309337/12
11-29-2018
Alexis OGANDO, et al., Plaintiffs–Appellants, v. NATIONAL FREIGHT, INC., et al., Defendants–Respondents.
Mitchell Dranow, Sea Cliff, for appellants. Abrams, Gorelick, Friedman & Jacobson, LLP, New York (James E. Kimmel of counsel, New York), for National Freight, Inc. and Anthony Stephen Ostopoff, respondents. Russo & Tambasco, Melville (Yamile Al–Sullami of counsel), for Jael A. Vasquez, respondent.
Mitchell Dranow, Sea Cliff, for appellants.
Abrams, Gorelick, Friedman & Jacobson, LLP, New York (James E. Kimmel of counsel, New York), for National Freight, Inc. and Anthony Stephen Ostopoff, respondents.
Russo & Tambasco, Melville (Yamile Al–Sullami of counsel), for Jael A. Vasquez, respondent.
Richter, J.P., Manzanet–Daniels, Gische, Kapnick, Gesmer, JJ.
Defendants made a prima facie showing that neither plaintiff met the statutory serious injury threshold under the No–Fault Law (see generally Toure v. Avis Rent A Car Sys. , 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ).
Plaintiff Ogando's medical records included an MRI report showing multilevel degenerative disc disease (see Andrade v. Lugo, 160 A.D.3d 535, 536, 75 N.Y.S.3d 162 [1st Dept. 2018] ), and his expert failed to sufficiently raise an issue of fact by challenging the findings of degenerative disease or otherwise attempting to connect plaintiff's injuries to this accident ( Campbell v. Drammeh, 161 A.D.3d 584, 585, 77 N.Y.S.3d 381 [1st Dept. 2018] ). Ogando's expert also failed to address a prior motor vehicle accident which resulted in claimed lower back and neck injuries or to negate any inference that that accident was the cause of plaintiff's current conditions (see Moses v. Gelco Corp. , 63 A.D.3d 548, 548–549, 880 N.Y.S.2d 291 [1st Dept. 2009] ). Finally, Ogando provided inconsistent explanations for his complete cessation of treatment after three months (see Alston v. Elliott, 159 A.D.3d 575, 576, 73 N.Y.S.3d 50 [1st Dept. 2018] ).
Plaintiff Aybar's claim was also properly dismissed, as she testified that she stopped treatment because her doctors told her it was no longer necessary, and her medical records indicated that she had normal range of motion when treatment ceased. Her later assertion that she stopped medical treatment after no fault benefits expired was in direct conflict with her earlier testimony and thus failed to raise an issue of fact (see Vila v. Foxglove Taxi Corp. , 159 A.D.3d 431, 431, 71 N.Y.S.3d 69 [1st Dept. 2018] ). Moreover, her expert physician only documented a five degree limitation in one plane of motion, which is insufficient for a finding of serious injury under the statute (see Gaddy v. Eyler, 79 N.Y.2d 955, 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ).
We have considered plaintiffs' remaining contentions and find them unavailing.