| Depena v Sylla |
| 2009 NY Slip Op 04750 [63 AD3d 504] |
| June 11, 2009 |
| Appellate Division, First Department |
| Deysi Depena, Respondent-Appellant, v Mohamed Syllaet al., Appellants-Respondents. |
—[*1] PeÑa & Kahn, PLLC, Bronx (Ralph P. Franco, Jr. of counsel), forrespondent-appellant.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered January 9, 2009, whichgranted defendants' motion for summary judgment dismissing the complaint alleging seriousinjury only to the extent it sought to dismiss the 90/180-day claim, unanimously modified, on thelaw, without costs, to grant the motion in its entirety. The Clerk is directed to enter judgment infavor of defendants dismissing the complaint.
Defendants established prima facie that plaintiff did not sustain a permanent consequential orsignificant injury, by submitting the affirmations of an orthopedist, neurologist and radiologistwho found that the knee and shoulder conditions were degenerative in origin and did not causesignificant limitations, that the lumbar spine condition was preexisting, and that there were nolimitations in range of motion of the cervical spine (see Valentin v Pomilla, 59 AD3d 184 [2009]). The conflictbetween the neurologist's findings of normal range of motion and the orthopedist's findings oflimited range of motion in plaintiff's lumbar spine does not require denial of the motion, sincedefendants submitted sufficient evidence to establish that any lumbar injury was the result of anearlier work accident and surgery.
Plaintiff failed to submit sufficient evidence to raise an issue of fact as to any of the allegedinjuries. As to her right knee, a radiologist, Dr. Lubin, reported that an MRI taken after theaccident showed "[g]rade II linear signal abnormality within the posterior horn of the medialmeniscus likely representing degenerative changes." Defendants' radiological expert similarlyopined that the MRI showed degenerative changes but no evidence of acute or recent injury.While plaintiff's orthopedic surgeon, Dr. Silverman, opined that the knee condition resulted fromthe accident, he failed to address the medical findings of degenerative change by the radiologistsand provided no support for his conclusion (see Valentin, supra; Cruz v Aponte, 60 AD3d 431[2009]).
Dr. Silverman also failed to address defendants' experts' findings that plaintiff's restrictedrange of motion in the lumbar spine was attributable to her prior surgeries and that her shouldershowed evidence of degenerative changes and no limitation in range of motion. Althoughplaintiff's MRIs showed herniated discs in the cervical spine, defendants' experts found fullrange of motion, as did a doctor and an acupuncturist who treated plaintiff after the [*2]accident (see Valentin, supra; Onishi v N & B Taxi, Inc., 51 AD3d594 [2008]). Dr. Silverman's finding, two years after the accident, of some limitation inrange of motion is too remote to raise an issue of fact whether the limitation was caused by theaccident (see Lopez v Simpson, 39AD3d 420 [2007]).
Plaintiff's claim that she could not perform substantially all her daily activities for 90 of thefirst 180 days following the accident because of an injury or impairment caused by the accidentwas not substantiated by competent medical evidence (see Uddin v Cooper, 32 AD3d 270, 272 [2006], lv denied8 NY3d 808 [2007]). Concur—Tom, J.P., Nardelli, Catterson, Renwick and Richter, JJ.