| Hospedales v "John Doe" |
| 2010 NY Slip Op 09182 [79 AD3d 536] |
| December 14, 2010 |
| Appellate Division, First Department |
| Recharde Hospedales, Appellant, v "John Doe," Also Known asDanilo G. Perdomo, et al., Respondents. |
—[*1] Abrams, Gorelick, Friedman & Jacobson, P.C., New York (Dennis J. Monaco of counsel), forrespondents.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered August 10, 2009,which granted defendants' motion 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.
Plaintiff failed to raise an issue of fact in response to defendants' prima facie showing that plaintiff'salleged injuries are neither permanent nor significant and, moreover, not the result of the July 2005automobile accident in question. More particularly, in support of the motion, defendants' orthopedicsurgeon stated that he examined plaintiff in October 2007 and diagnosed him with a resolvedsprain/strain of the cervical and lumbar spine, a resolved sprain of the bilateral shoulders, and aresolved sprain of the bilateral elbows. In response, plaintiff's treating physician stated that he last sawplaintiff in March 2006, at which time he diagnosed plaintiff with cervical pain secondary to cervicaldisc herniations, cervical radiculopathy, and lower back pain, all permanent. The only explanationoffered for this cessation of treatment eight months after the accident is plaintiff's physician's statementthat unspecified "insurance coverage issues" prevented plaintiff from complying with a recommendationto see an orthopedic surgeon. Such statement does not reasonably explain a complete cessation oftreatment for allegedly permanent injuries (seePommells v Perez, 4 NY3d 566, 574 [2005]). Thus, other than plaintiff's physician'sconclusory statement that plaintiff's injuries are permanent, there is no response to defendants' medicalevidence that, a year and a half after plaintiff was last seen by his physician, plaintiff's injuries hadresolved.
In addition, plaintiff simply did not address the affidavit of defendant's radiologist stating that thedisc herniations revealed on an MRI taken in November 2005 were the result of a degenerativecondition unrelated to the accident (see Pommells, 4 NY3d at 579-580). In any event, even ifplaintiff's alleged limitations were attributable to disc herniations that are not degenerative in nature,"bulging or herniated discs are not, in and of themselves, evidence of serious injury without competentobjective evidence of the limitations and duration of the disc injury" (DeJesus v Paulino, 61 AD3d 605, 608[2009], citing Pommells, 4 NY3d at 574). [*2]Plaintiff offeredno such objective evidence. At most, plaintiff showed that he was, about eight months after theaccident, still experiencing some cervical pain, cervical radiculopathy, and low back pain.
Plaintiff's alleged 90/180-day injury was sufficiently refuted, prima facie, by his bill of particularsalleging that he was confined to bed for one week and to home for one month (see DeJesus, 61AD3d at 607). The report of plaintiff's treating physician, which does not indicate that plaintiff wasadvised not to work or engage in any particular activities after the accident, failed to raise an issue offact in this regard (see Nieves v Castillo,74 AD3d 535 [2010]; Weinberg vOkapi Taxi, Inc., 73 AD3d 439 [2010]). Concur—Sweeny, J.P., Moskowitz,Renwick, DeGrasse and RomÁn, JJ.