Franklin v. Gareyua

• Decision Date: 09 February 2016
• Docket Number: 16057,20308/12E.
• Parties: Kyreese L. FRANKLIN, Plaintiff–Appellant, v. Carmen Rosa GAREYUA, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 464

24 N.Y.S.3d 304

2016 N.Y. Slip Op. 00886

Kyreese L. FRANKLIN, Plaintiff–Appellant,

v.Carmen Rosa GAREYUA, et al., Defendants–Respondents.

16057

20308/12E.

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

Feb. 9, 2016.

McMahon & McCarthy, Bronx (Daniel C. Murphy of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Colin F. Morrissey of counsel), for respondents.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 17, 2014, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing plaintiff's claim that he suffered a serious injury to his left shoulder within the meaning of Insurance Law § 5102(d), affirmed, without costs.

Plaintiff's appellate brief does not challenge Supreme Court's determination that defendants made a prima facie showing that plaintiff did not suffer a serious injury to his left shoulder as a result of the motor vehicle accident at issue. Defendants submitted the affirmed reports of a radiologist and orthopedic surgeon, who opined that the conditions present in his left shoulder were degenerative in nature and unrelated to any trauma (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 ). Defendants also submitted plaintiff's own medical records, which found arthrosis and no traumatic injury (id.). Specifically, Jeffrey N. Lang, M.D., opined in a radiological report to plaintiff's treating orthopedic surgeon that the postaccident X ray of plaintiff's left shoulder showed “no evidence of a fracture or other focal osseous abnormality” nor any evidence of “dislocation.” In addition, an MRI report to plaintiff's treating orthopedic surgeon by Jack Lyons, M.D., opined that the postaccident MRI of the left shoulder, while it revealed “mild AC joint arthrosis and malalignment of the AC joint” and mild bursitis, showed “no evidence of fracture, dislocation, or bone marrow abnormalities to be suspicious for bone contusions, stress fractures, or acute trabecular microfractures.” The plain import of the reports by Dr. Lang and Dr. Lyons—both of which, to reiterate, were prepared at the request of plaintiff's treating orthopedic surgeon and are included within his own medical records—is that the X ray and MRI of his left shoulder showed no evidence of traumatic injury but only of degenerative conditions such as arthrosis and bursitis.

In opposition, plaintiff failed to raise a triable issue of fact as to causation. His treating orthopedist, Louis C. Rose, M.D., did not refute or address the findings of preexisting degeneration and lack of traumatic injury, set forth in the reports by Dr. Lang and Dr. Lyons contained in plaintiff's own medical records (as described above), nor did Dr. Rose explain why degeneration was not the cause of the left shoulder injury (see Alvarez, 120 A.D.3d at 1044, 993 N.Y.S.2d 1; Paduani v. Rodriguez, 101 A.D.3d 470, 471, 955 N.Y.S.2d 48 1st Dept.2012 ). Given that Dr. Lang and Dr. Lyons plainly reported that no evidence of traumatic injury was found in the X ray and MRI of the left shoulder, it is immaterial that their reports did not use the word “preexisting” to describe the degenerative conditions that were detected.

The dissent, taking the position that an issue of fact exists as to whether the accident caused plaintiff's shoulder injury, does not deal with the aforementioned opinions of Dr. Lang and Dr. Lyons in plaintiff's own medical records. It appears to be the dissent's view that the support in plaintiff's medical records for the shoulder injury having a degenerative origin are of no moment because plaintiff's medical expert, Dr. Louis C. Rose, in his affirmation prepared for this litigation, offered a “diagnosis [that] ... contrasts significantly with the one proffered by defendants' experts.” However, the dissent offers no support for its view that there is a “factual disagreement” between the defense experts and plaintiff's expert (Dr. Rose) on the diagnosis of the shoulder injury, as opposed to its etiology. Specifically, the dissent simply assumes that the defense experts' diagnosis of osteoarthritis of the AC joint and chronic impingement syndrome were inconsistent with the presence of tears to the labrum and rotator cuff, which was Dr. Rose's diagnosis. Nothing in the record supports the assumption that the conditions diagnosed by the defense experts do not result in tears to the labrum and rotator cuff.

We have considered plaintiff's remaining contentions and find them unavailing.

All concur except GISCHE and KAPNICK, JJ. who dissent in a memorandum by GISCHE, J. as follows:

GISCHE, J. (dissenting).

I agree with the majority that it was incumbent upon plaintiff to address the issue of causation in opposition to defendants' motion. However, I dissent with respect to the majority's conclusion that plaintiff did not provide sufficient evidence to raise a question of fact as to whether the injuries were the product of a degenerative condition or causally related to the accident.

Plaintiff alleged injuries to his left shoulder following a rear-end collision in which defendants' automobile struck his vehicle while he was stopped at a red light. A day after the accident, plaintiff sought treatment with an orthopedic surgeon, Dr. Louis C. Rose, to whom he complained of shoulder, neck, and back pain. During his initial evaluation, in addition to finding range of motion limitations in plaintiff's left shoulder, Dr. Rose also noted tenderness of the AC joint and a rotator cuff insertion with impingement. Plaintiff informed Dr. Rose that he had no previous orthopedic injuries and had been...