Rivera v. Fernandez & Ulloa Auto Grp.

• Decision Date: 11 December 2014
• Docket Number: 13516 308178/10
• Citation: 123 A.D.3d 509,2014 N.Y. Slip Op. 08735,999 N.Y.S.2d 37
• Parties: Richard RIVERA, et al., Plaintiffs–Appellants, v. FERNANDEZ & ULLOA AUTO GROUP, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 509

999 N.Y.S.2d 37

2014 N.Y. Slip Op. 08735

Richard RIVERA, et al., Plaintiffs–Appellants

v.FERNANDEZ & ULLOA AUTO GROUP, et al., Defendants–Respondents.

13516 308178/10

Supreme Court, Appellate Division, First Department, New York.

Dec. 11, 2014.

The Law Office of Judah Z. Cohen, PLLC, Woodmere (Judah Z. Cohen of counsel), for appellants.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for respondents.

FRIEDMAN, J.P., ACOSTA, SAXE, MANZANET–DANIELS, GISCHE, JJ.

Opinion

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered June 21, 2013, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff Rivera's complaint on the threshold issue of serious injury within the meaning of Insurance Law § 5102(d), affirmed, without costs.

Defendants' summary judgment motion was timely since it was served within 120 days after the filing of the note of issue (Derouen v. Savoy Park Owner, L.L.C., 109 A.D.3d 706, 971 N.Y.S.2d 2 [1st Dept.2013] ).

In support of their motion for summary judgment, defendants made a prima facie showing that plaintiff did not suffer a permanent consequential or significant limitation of use of his left knee as a result of the subject motor vehicle accident. In their reports, defendants' expert radiologist and orthopedist opined that plaintiff had a chronic condition and suffered no injury causally related to the accident. Defendant's orthopedist found that plaintiff's left knee showed no signs of abnormality and had the same range of motion as the uninjured right knee. In addition, plaintiff's own medical records included an analysis of a post-accident MRI of his left knee concluding that the knee exhibited “[d]egenerative signal posterior horn, medial meniscus, without definitive MRI evidence for tear.” This finding was acknowledged, and not contested, in an August 2010 note by plaintiff's treating orthopedic surgeon that was included in plaintiff's medical records and apparently had not been prepared for use in litigation.

Plaintiff's opposition to the summary judgment motion failed to raise a triable issue in response to defendants' prima facie case. Plaintiff submitted his aforementioned orthopedic surgeon's opinion that he suffered a knee injury “secondary” to the car accident. However, the surgeon's opinion failed to raise an issue of fact since the surgeon not only failed to address or contest the opinion of defendants' medical experts that any condition was chronic and unrelated to the accident, but also failed to address or contest the finding of degenerative changes in the MRI report in plaintiff's own medical records, which the same surgeon had acknowledged in his August 2010 note.

Our dissenting colleague overlooks that recent precedents of this Court establish that a plaintiff cannot raise an issue of fact concerning the existence of a serious injury under the No–Fault Law where, as here, the plaintiff's own experts fail to address indications from the plaintiff's own medical records, or in the plaintiff's own expert evidence, that the physical deficits in question result from a preexisting degenerative condition rather than the subject accident (see Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 993 N.Y.S.2d 1 [1st Dept.2014] [plaintiff failed to raise issue of fact where, inter alia, his expert failed to address “detailed findings of preexisting degenerative conditions by defendants' experts, which were acknowledged in the reports of plaintiff's own radiologists”]; Farmer v. Ventkate, Inc., 117 A.D.3d 562, 562, 986 N.Y.S.2d 98 [1st Dept.2014] [plaintiff failed to raise issue of fact where, inter alia, “(h)is orthopedic surgeon concurred that the X rays showed advanced degenerative changes”]; Mena v. White City Car & Limo Inc., 117 A.D.3d 441, 441, 985 N.Y.S.2d 234 [1st Dept.2014] [plaintiff failed to raise issue of fact where, inter alia, “plaintiff's own radiologists noted degenerative conditions in their MRI reports, but failed to explain why this was not the cause of plaintiff's injuries”]; Paduani v. Rodriguez, 101 A.D.3d 470, 470, 471, 955 N.Y.S.2d 48 [1st Dept.2012] [plaintiff failed to raise issue of fact where, inter alia, defendants submitted “a radiograph report of plaintiff's radiologist finding severe degenerative changes” and, “(w)hile (plaintiff's) expert acknowledged in his own report MRI findings of degenerative changes in the lumbar spine, he did not address or contest such findings, and the MRI report of (plaintiff's) radiologist found herniations but did not address causation”]; Rosa v. Mejia, 95 A.D.3d 402, 404, 943 N.Y.S.2d 470 [1st Dept.2012] [plaintiff failed to raise issue of fact where, inter alia, “plaintiff's own radiologist ... confirmed ‘degenerative narrowing at the L5–S1 intervertebral disc space’ without further comment”] ).

All concur except ACOSTA and MANZANET–DANIELS, JJ. who dissent in part in a memorandum by MANZANET–DANIELS, J. as follows:

MANZANET–DANIELS, J. (dissenting in part).

I would find that plaintiff has raised a triable issue of fact as to whether he suffered a serious injury within the meaning of Insurance Law § 5102(d). I would accordingly reverse the motion court's order and reinstate the complaint.

Plaintiff's treating orthopedic surgeon affirmed that the left knee injury was causally related to the accident. Plaintiff's surgeon opined, inter alia, that plaintiff sustained...