| Valentin v Pomilla |
| 2009 NY Slip Op 00981 [59 AD3d 184] |
| February 10, 2009 |
| Appellate Division, First Department |
| Milton Valentin, Respondent, v Francesco Pomilla et al.Defendants, and Marcos Alonzo, Appellant. |
—[*1] Shapiro Law Offices, Bronx (Jason S. Shapiro of counsel), for respondent.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered on or about November26, 2007, which denied defendants' motions for summary judgment dismissing the complaint,unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directedto enter judgment in favor of defendants dismissing the complaint.
Defendants established prima facie that plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) by submitting a radiologist's affirmed report thatplaintiff's MRI films revealed evidence of degenerative disc disease predating the accident andno evidence of post-traumatic injury to the disc structures (see Perez v Hilarion, 36 AD3d 536, 537 [2007]). In opposition,plaintiff failed to raise an inference that his injury was caused by the accident (see Diaz v Anasco, 38 AD3d 295[2007]) by not refuting defendants' evidence of a preexisting degenerative condition of the spine.Missing from all of plaintiff's submissions is any mention of the congenital defect at the S1vertebral level and degenerative condition of plaintiff's lumbar spine reported by Dr. Eisenstadtor the preexisting degenerative changes in his right knee and degenerative meniscal tears in bothposterior horns of both menisci reported by plaintiff's own experts, Drs. Lubin and Rose, in theirinitial evaluation of plaintiff's right knee shortly after the accident (see Pommells v Perez, 4 NY3d566, 580 [2005]).
With regard to his claim that the evidence submitted by him was sufficient to raise aninference that he suffered injuries that were caused by the accident, plaintiff asserts that hisMRIs of the cervical and lumbar spine revealed disc herniation at L4-5 and L5-S1 and discbulging at C4-C5, and that EMGs revealed L5-S1 radiculopathy. However, "[a] herniated disc,by itself, is insufficient to constitute a 'serious injury'; rather, to constitute such an injury, aherniated disc must be accompanied by objective evidence of the extent of alleged physicallimitations resulting from the herniated disc" (Onishi v N & B Taxi, Inc., 51 AD3d 594, 595 [2008]). Plaintiffalso contends that the MRI of his right knee revealed a medial meniscal tear, for which heultimately underwent arthroscopy. Again, he makes no mention of the degenerative nature of thatcondition.[*2]
In addition, plaintiff argues that his chiropractor Dr.Zeren's affidavit set forth objective quantified evidence of the degree of limitation andpermanency of the injuries sustained by him. Notably, he contends Dr. Zeren found positivestraight-leg testing during plaintiff's May 30, 2007 examination (see Brown v Achy, 9 AD3d 30,31-32 [2004]), and that plaintiff was also noted to have decreased limitation of motion of thelumbar and cervical spine (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353[2002]).
However, plaintiff's reliance on Dr. Zeren's affidavit is misplaced. Although he presumablysaw plaintiff just days after the accident, Dr. Zeren failed to provide documentation regardingthat visit or any contemporaneous evidence of limitations. In this regard, there were nocontemporaneous limitations shown regarding the accident—at most, some limitationswere purportedly measured by Dr. Hausknecht two months after the accident (see Thompson v Abbasi, 15 AD3d95, 98 [2005] ["despite the positive MRI findings as to plaintiff's cervical spine two monthsafter the accident, there are no objective findings contemporaneous with the accidentshowing any initial range-of-motion restrictions on plaintiff's cervical spine" (emphasis added)]).Even if Dr. Hausknecht's report was considered contemporaneous, the limitations concernedonly lateral flexion of the cervical spine and forward flexion of the lumbar spine, and wereminor. In addition, Dr. Hausknecht failed to address whether plaintiff's condition was causallyrelated to the motor vehicle accident at issue.
The most significant flaw in plaintiff's arguments is his failure to address causation. "Torecover damages for noneconomic loss related to personal injury allegedly sustained in a motorvehicle accident, the plaintiff is required to present nonconclusory expert evidence sufficient tosupport a finding not only that the alleged injury is 'serious' within the meaning of InsuranceLaw § 5102 (d), but also that the injury was causally related to the accident. Absent anexplanation of the basis for concluding that the injury was caused by the accident, as opposed toother possibilities evidenced in the record, an expert's conclusion that plaintiff's condition iscausally related to the subject accident is mere speculation, insufficient to support a finding thatsuch a causal link exists" (Diaz v Anasco, 38 AD3d at 295-296 [internal quotation marksand citations omitted]).
Here, not only did plaintiff's experts fail to refute defendants' evidence of a preexistingcongenital and degenerative condition of the spine, his own doctors reported a degenerativecondition of the right knee. Dr. Rose's failure even to mention, let alone explain, why he ruledout degenerative changes as the cause of plaintiff's knee and spinal injuries rendered his opinionthat they were caused by the accident speculative (see Gorden v Tibulcio, 50 AD3d 460, 464 [2008]). Consequently,there is no objective basis for concluding that the present physical limitations and continuingpain are attributable to the subject accident rather than to the degenerative condition (see Jimenez v Rojas, 26 AD3d256, 257 [2006]). In Pommells vPerez (4 NY3d 566 [2005], supra), where, as here, there was persuasiveevidence that the plaintiff's alleged pain and injuries were related to preexisting degenerativeconditions, the Court held that plaintiff had the burden of coming forward with evidenceaddressing the defendants' claimed lack of causation. In the absence of such evidence, thedefendants are entitled to summary dismissal of the complaint (id. at 580; see also Franchini v Palmieri, 1 NY3d536, 537 [2003]; Licari v Elliott, 57 NY2d 230, 237 [1982]).
Moreover, absent any objective medical evidence that his injuries were caused by theaccident, plaintiff's statements that he was limited in his ability to exercise or perform personalmaintenance were insufficient to establish his 90/180-day claim. Despite plaintiff's claim that he[*3]was confined to bed and home from the date of the accidentto the present date and the conclusion of Dr. Hausknecht, who examined him during the statutorytime period, that plaintiff was "totally disabled" and "I . . . advised him to restricthis activities," plaintiff still fails to offer competent medical proof that he could not performsubstantially all his daily activities for 90 of the first 180 days following the accident "because ofan injury or impairment caused by the accident" (Rossi v Alhassan, 48 AD3d 270, 271 [2008]). Such statements aretoo general in nature to raise an issue of fact that plaintiff was unable to perform his usual andcustomary activities during the statutorily required time period and do not support any claim thatplaintiff's confinement to bed and home was medically required (see Gorden v Tibulcio,50 AD3d at 463).
Finally, although defendants Francesco Pomilla and Yvonne M. Pomilla did not appeal fromthe denial of their cross motion for summary judgment, upon a search of the record, we grantsummary judgment to them pursuant to CPLR 3212 (b) (see Merritt Hill Vineyards v WindyHgts. Vineyard, 61 NY2d 106, 110-112 [1984]). Concur—Lippman, P.J., Andrias,Saxe, Sweeny and DeGrasse, JJ.