Ortiz v. Boamah

• Decision Date: 14 February 2019
• Docket Number: 8021,Index 304309/13
• Citation: 93 N.Y.S.3d 311,169 A.D.3d 486
• Parties: Ana L. ORTIZ, Plaintiff–Appellant, v. Elvis BOAMAH, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 486

93 N.Y.S.3d 311

Ana L. ORTIZ, Plaintiff–Appellant,

v.Elvis BOAMAH, et al., Defendants–Respondents.

8021

Index 304309/13

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

Decided February 14, 2019

Omrani & Taub, P.C., New York (Michael A. Taub of counsel), for appellant.

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

Sweeny, J.P., Gische, Kahn, Oing, Singh, JJ.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about June 14, 2017, which, in this action for personal injuries sustained in a motor vehicle accident, granted defendants' motion for summary judgment dismissing the complaint, unanimously modified, to the extent of reinstating the serious injury claim relating to the permanent consequential or significant limitation in use of a body function or system, and otherwise affirmed, without costs.

On its motion for summary judgment, defendants prima facie established that plaintiff did not suffer a serious injury to her thoracic or lumbar spine as a result of the subject accident ( Insurance Law § 5102[d] ). Defendants submitted plaintiff's medical records and the affirmed report of an orthopedist who, following examination and review of the medical records, found that plaintiff had preexisting conditions and no evidence of injuries caused by trauma (see Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509, 999 N.Y.S.2d 37 [1st Dept. 2014], affd 25 N.Y.3d 1222, 16 N.Y.S.3d 515, 37 N.E.3d 1159 [2015] ; Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 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] ). No imaging had been conducted of plaintiff's thoracic spine and the orthopedist stated that his examination showed that the thoracic spine was normal, except for scoliosis

. As to plaintiff's lumbar spine, the orthopedist stated that plaintiff's own MRI reports revealed degenerative stenosis and spondylosis and plaintiff's medical records revealed preexisting arthritis and scoliosis. The orthopedist opined that there was no indication that plaintiff suffered any separate injury to her lumbar spine or that her preexisting and degenerative conditions had been aggravated by the accident. Defendants also argued that plaintiff sought no treatment after the accident and failed to explain her gaps in treatment (see

Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).

In opposition, plaintiff raised a triable issue of fact that the injuries to, at least, her lumbar spine were caused by the underlying motor vehicle accident. She also adequately explained any gap in treatment.

Plaintiff was operating her motor vehicle when it was struck by a taxi operated by defendant Adjin and owned by defendant Boamah. Plaintiff, who was 70 years old, alleged that the accident "caused, created, exacerbated and/or reactivated" injuries to her lumbar spine. These injuries included various disc herniations and posterior spondylosis

that eventually required an L4–5 laminectomy, interbody cage fusion, and pedicle screw fixation. Although she did not seek medical treatment by EMTs at the scene of the accident, plaintiff began experiencing neck and back pain a few days afterwards. Approximately three weeks after the accident, plaintiff sought treatment. An MRI revealed, inter alia, scoliosis, degenerative disc disease, and spondylolisthesis. Plaintiff continued treatment, which included physical therapy, until April 2011, when her treating physician recommended discontinuing the physical therapy, as it was no longer beneficial, and returning only when needed. At the time of discharge, however, her treating physician documented that plaintiff still experienced pain and there was tenderness on the lumbar spine.

In July 2012 plaintiff presented to a hospital's emergency department, where she reported experiencing chronic back pain for the prior two months. Subsequent medical imaging showed, inter alia, degenerative disc disease

, spondylolisthesis, and multilevel disc bulges and herniations. She had surgery two months later in September.

Since plaintiff's own medical records showed evidence of a preexisting degenerative condition in her spine, she was required to address those findings and explain why her symptoms were not related to the preexisting condition ( Giap v. Hathi Son Pham, 159 A.D.3d 484, 485, 71 N.Y.S.3d 504 [1st Dept. 2018] ). An explanation that the plaintiff was previously asymptomatic and the accident aggravated an underlying pre-existing condition, rendering the plaintiff symptomatic, is sufficient to raise an issue of fact as to causation ( id. at 486, 71 N.Y.S.3d 504 ["To the extent plaintiff's physicians asserted that plaintiff Pham had degenerative joint disease

which was common for her age, that she was previously asymptomatic, that the accident aggravated her underlying degenerative joint disease, and that trauma increases the rate of disc desiccation, rendering her now symptomatic, this was sufficient to raise an issue of fact as to causation"] [internal quotations marks omitted]; see

McIntosh v. Sisters Servants of Mary, 105 A.D.3d 672, 673, 965 N.Y.S.2d 403 [1st Dept. 2013] ).

Plaintiff submitted the reports of both her treating neurosurgeon and treating chiropractor, each of whom independently opined that because she...