Montgomery v. Pena
| Decision Date | 28 June 2005 |
| Docket Number | 2907. |
| Citation | 798 N.Y.S.2d 17,2005 NY Slip Op 05422,19 A.D.3d 288 |
| Court | New York Supreme Court — Appellate Division |
| Parties | CASSANDRA MONTGOMERY, Respondent, v. MIGUEL PENA et al., Appellants. |
In this personal injury action, plaintiff alleges that, in a motor vehicle accident on October 12, 2000, she suffered "serious injury," within the meaning of Insurance Law § 5102 (d), to her right shoulder, right knee, and back. In moving for summary judgment, however, defendants established a prima facie case that the subject accident did not cause plaintiff any serious injury. Among other things, defendants offered the affirmed reports of an orthopedist and a neurologist, who opined, after personally examining plaintiff on September 10, 2002, that plaintiff suffered from no orthopedic or neurological disability as of that date. In addition, defendants offered affirmed reports by a radiologist, opining that MRI scans of plaintiff's right knee and right shoulder, made within about two months of the subject accident, indicated that plaintiff suffered from preexisting degenerative conditions in both of these joints, but showed no evidence of any trauma-related injury. Similarly, a November 2000 radiologist's report in plaintiff's medical file stated that an x-ray of the right knee showed an early stage of osteoarthritis, but "no evidence of fracture or gross destructive lesion," and an x-ray of the right shoulder showed "no evidence of fracture." Defendants also submitted the transcript of plaintiff's deposition, at which she testified (1) that, due to a heart condition, she has been unable to work since 1992, (2) that she injured her right knee in a fall in 1991, and (3) that she injured her back in an automobile accident in June 2000, about four months before the subject accident.
In the face of defendants' evidence, plaintiff failed to come forward with the "objective proof" (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]) required to create a triable issue as to whether her alleged injuries, even if assumed to have met the serious injury threshold, were caused by the subject motor vehicle accident. The affirmed report of plaintiff's treating physician (Dr. Marrone) fails to give any objective basis for concluding that plaintiff's alleged limitations result from the October 2000 accident, rather than from her 1991 right knee injury, her June 2000 back injury, or from the preexisting degenerative conditions of the right knee and the right shoulder that were...
To continue reading
Request your trial
-
Evans v. United States
...to support a finding that such a causal link exists.”) (citations and internal quotation marks omitted); Montgomery v. Pena, 19 A.D.3d 288, 289–90, 798 N.Y.S.2d 17, 18 (1st Dep't 2005) (granting the defendant's motion for summary judgment in part because the plaintiff's physician failed to ......
-
Perpall v. Pavetek Corp.
...prior injuries and accidents and failed to address plaintiff's pre-existing medical conditions); see also Montgomery v. Pena, 798 N.Y.S.2d 17, 18 (App. Div. 2005) (granting the defendant's summary judgment motion because the plaintiff's doctor did "not even mention the prior injuries or the......
-
Ciappetta v. Snyder
...the permanent loss of use, consequential limitation of use or significant limitation of use categories."); Montgomery v. Pena, 19 A.D.3d 288, 798 N.Y.S.2d 17, 18 (N.Y. App. Div. 2005) (defendants were entitled to summary judgment where plaintiff's expert failed to give an "objective basis" ......
-
Gil v. W. Express, Inc.
...to support a finding that such a causal link exists.") (citations and internal quotation marks omitted); Montgomery v. Pena, 798 N.Y.S.2d 17, 18 (1st Dep't 2005) (granting the defendant's motion for summary judgment in part because the plaintiff's physician failed to mention the prior injur......
-
G. Overview of the Most Litigated Threshold Categories
...N.Y.S.2d 408 (2d Dep't 2005); Grimes-Carrion v. Carroll, 17 A.D.3d 296, 794 N.Y.S.2d 30 (1st Dep't 2005).[571] See Montgomery v. Pena, 19 A.D.3d 288, 290, 798 N.Y.S.2d 17 (1st Dep't 2005); Martinez v. McKenzie, 10 Misc. 3d 1054(A), 809 N.Y.S.2d 482 (Sup. Ct., Bronx Co. 2005).[572] See Pomme......
-
G. Overview Of The Most Litigated Threshold Categories
...N.Y.S.2d 408 (2d Dep't 2005); Grimes-Carrion v. Carroll, 17 A.D.3d 296, 794 N.Y.S.2d 30 (1st Dep't 2005).[588] See Montgomery v. Pena, 19 A.D.3d 288, 290, 798 N.Y.S.2d 17 (1st Dep't 2005); Martinez v. McKenzie, 10 Misc. 3d 1054(A), 809 N.Y.S.2d 482 (Sup. Ct., Bronx Co. 2005).[589] See Pomme......