| Cruz v Lugo |
| 2009 NY Slip Op 08145 [67 AD3d 495] |
| November 12, 2009 |
| Appellate Division, First Department |
| Efrain Cruz, Appellant, v Sandra Lugo et al.,Respondents. |
—[*1] Cheven, Keely & Hatzis, New York (Mayu Miyashita of counsel), for Sandra Lugo,respondent. Richard T. Lau & Associates, Jericho (Keith E. Ford of counsel), for Pedro Martinez andPentecostal Church Freed by Jesus Christ, respondents.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 16, 2008, whichgranted defendants' motions for summary judgment dismissing the complaint on the ground thatplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d),unanimously affirmed, without costs.
Defendants met their initial burden of establishing prima facie that plaintiff did not sustain aserious injury by submitting the reports of experts who, after examining plaintiff and reviewingMRI studies taken shortly after the accident, diagnosed resolved strain or sprain of the cervicaland lumbar spine and resolved sprain of the left shoulder, with full range of motion in both areas.One of the experts reported that an MRI study of plaintiff's lumbar spine taken three months afterthe accident showed degenerative disc disease with mild disc desiccation and mild posteriorannular bulging unrelated to the accident.
In opposition, plaintiff submitted reports by a number of experts who opined that hesuffered, inter alia, from lumbosacral and cervical sprain or strain, disc bulge, shallow centraldisc herniation and that he had limited ranges of motion in his cervical and lumbar spine and leftshoulder. However, he failed to raise an issue of fact as to the cause of these injuries, since onlyone of his experts addressed the issue whether the disc bulging or herniation noted in the MRIswas the result of a degenerative condition, and he opined that plaintiff suffered fromdegenerative disc disease (see Valentinv Pomilla, 59 AD3d 184, 186 [2009]). Moreover, six months after the accident, plaintiffwas discharged from the care of his treating doctor, who at that time found nothing wrong withplaintiff's neck or left shoulder and only a minimal to mild restriction of the range of motion ofplaintiff's lower back. Plaintiff's reference to "financial issues" is an [*2]inadequate explanation for the 15-month gap in his treatment inview of the fact that he remained employed (see Pommells v Perez, 4 NY3d 566, 574 [2005]).Concur—Gonzalez, P.J., Andrias, Saxe, Renwick and Manzanet-Daniels, JJ.