Kendig v. Kendig

• Decision Date: 06 March 2014
• Citation: 115 A.D.3d 438,981 N.Y.S.2d 411,2014 N.Y. Slip Op. 01509
• Parties: Maureen KENDIG, Plaintiff–Appellant, v. Alanna KENDIG, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 438

981 N.Y.S.2d 411

2014 N.Y. Slip Op. 01509

Maureen KENDIG, Plaintiff–Appellant,

v.Alanna KENDIG, Defendant–Respondent.

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

March 6, 2014.

Spiegel & Barbato, LLP, Bronx (Stephen A. Iannacone of counsel), for appellant.

Hurwitz & Fine, P.C., Melville (Elizabeth A. Fitzpatrick of counsel), for respondent.

MAZZARELLI, J.P., SWEENY, RENWICK, FREEDMAN, GISCHE, JJ.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 5, 2012, which granted defendant's motion for summary judgment dismissing the complaint based on plaintiff's failure to demonstrate that she suffered a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Plaintiff claims to have suffered cervical and lumbar spine disc injuries and bilateral carpal tunnel syndrome, as a result of an accident in which she was a passenger in a car driven by her daughter.

Defendant made a prima facie showing that plaintiff, who was 61 years old at the time of the accident, did not suffer a serious injury as a result of the motor vehicle accident. Defendant's orthopedic expert found no deficits in range of motion of the claimed injured body parts, and opined that the conditions shown in the MRI reports of the lumbar and cervical spine were preexisting degenerative conditions unrelated to trauma. Defendant's radiologist opined that the MRI films of plaintiff's cervical spine showed only chronic and degenerative conditions predating the accident ( see Nova v. Fontanez, 112 A.D.3d 435, 976 N.Y.S.2d 72 [1st Dept. 2013]; Mitrotti v. Elia, 91 A.D.3d 449, 936 N.Y.S.2d 42 [1st Dept. 2012] ).

In opposition, plaintiff failed to raise an issue of fact. She submitted a favorable disability decision by an Attorney Advisor for the Social Security Administration who confirmed that plaintiff suffered from degenerative disc disease of the cervical and lumbar spine. Her treating neurologist's report failed to address defendant's prima facie showing that her cervical and lumbar spine conditions were degenerative, preexisting and arthritic ( see Nova, 112 A.D.3d at 436, 976 N.Y.S.2d 72). The report noted clinical findings consistent with an “exacerbation of multilevel cervical and lumbar disc bulges and protrusion” but provided no basis for determining the extent of any such exacerbation ( see Brand v. Evangelista, 103 A.D.3d 539, 540, 962 N.Y.S.2d 52 [1st Dept. 2013]; Nova, 112 A.D.3d...