| Rosa v Mejia |
| 2012 NY Slip Op 03365 [95 AD3d 402] |
| May 1, 2012 |
| Appellate Division, First Department |
| Luz Rosa, Appellant, v Freddy A. Mejia,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered November 5, 2010, whichgranted defendant's motion for summary judgment dismissing the complaint based on the failureto establish a serious injury within the meaning of Insurance Law § 5102 (d), unanimouslyaffirmed, without costs.
Defendant made a prima facie showing that plaintiff did not sustain a "significant limitationof use" or "permanent consequential limitation of use" of her cervical and lumbar spines as aresult of the subject accident (Insurance Law § 5102 [d]). Defendant submitted, amongother things, the affirmed report of his orthopedist, who found normal ranges of motion inplaintiff's cervical spine, and the affirmed report of his radiologist, who indicated that plaintiff'slumbar injury was caused by a preexisting degenerative condition and not the accident (see Torres v Triboro Servs., Inc., 83AD3d 563 [2011]; see also Spencerv Golden Eagle, Inc., 82 AD3d 589, 590 [2011]). Defendant's orthopedic and neurologicexperts both concluded that plaintiff had normal ranges of motion in her cervical spine, "and theminor differences in what they regarded as normal ranges do not affect defendant's entitlement tosummary judgment" (Anderson vZapata, 88 AD3d 504 [2011]).
In opposition, plaintiff failed to submit any evidence of contemporaneous, postaccidenttreatment. Notably absent were emergency room, physical therapy or chiropractic records,medical charts or other documents setting forth the treatment she claimed to have receivedrelative to this accident. The affirmation of her treating physician, Dr. Perez, states that plaintiffwas first seen by her on June 25, 2008, some 5½ months after the accident. Plaintiff'sdeposition testimony stated that she was treated at a hospital emergency room the day of theaccident and then three days later. She also testified that she was treated by various medicalproviders, whom she could not identify by name except for Dr. Perez. Although plaintiff's bill ofparticulars references a number of medical providers plaintiff claims to have seen, and statesthere were attached bills and dates of treatment, none of these bills or treatment dates appear inthe record before us. Indeed, other than uncertified copies of the MRI reports from February 21and 28, 2008, this record is devoid of any medical records, charts or bills to support plaintiff'sclaim of having received treatment prior to seeing Dr. Perez in June 2008.[*2]
In short, "the record is devoid of any competent evidenceof plaintiff's treatment[ or the] need for treatment" that would warrant the denial of defendant'smotion (Thompson v Abbasi, 15AD3d 95, 97 [2005]).
The recent Court of Appeals decision in Perl v Meher (18 NY3d 208 [2011]) does not require a differentresult. Perl did not abrogate the need for at least a qualitative assessment of injuries soonafter an accident (see Salman vRosario, 87 AD3d 482, 484 [2011]). In fact, the Court noted with approval the commentin a legal article[FN*]that "a contemporaneous doctor's report is important to proof of causation; anexamination by a doctor years later cannot reliably connect the symptoms with the accident. Butwhere causation is proved, it is not unreasonable to measure the severity of the injuries ata later time" (18 NY3d at 217-218).
In this case, plaintiff has presented no admissible proof that she saw any medical provider forany evaluation until 5½ months after the accident. While the Court of Appeals inPerl "reject[ed] a rule that would make contemporaneous quantitative measurements aprerequisite to recovery" (18 NY3d at 218), it confirmed the necessity of some type ofcontemporaneous treatment to establish that a plaintiff's injuries were causally related to theincident in question.
Additionally, plaintiff's opposition fails to address defendant's evidence of preexistingdegeneration in plaintiff's lumbar spine (see Valentin v Pomilla, 59 AD3d 184, 184-186 [2009]).Defendant's expert radiologist, in examining the MRI of plaintiff's lumbar spine taken onFebruary 28, 2008, approximately 5½ weeks after the accident, stated that he observed"degenerative changes at the L5/S1 level." These findings were, in the expert's opinion,"consistent with a preexisting condition." The expert opined that "[t]here is no radiographicevidence of recent traumatic or causally related injury to the lumbar spine." Dr. Cooper,plaintiff's own radiologist, confirmed "degenerative narrowing at the L5-S1 intervertebral discspace" without further comment.
Significantly, Perl offers guidance with respect to this issue. As in this case, thedefendant in Perl presented a sworn radiologist's report based on an MRI that her injurieswere degenerative in nature and preexisted the accident. Unlike here, the Perl plaintiffsubmitted a radiologist's report that, while conceding that the degeneration in question might bepreexisting, also raised the issue that such degeneration may have been "a result of a specifictrauma" (18 NY3d at 219), thus raising, as the Court of Appeals found, an issue of fact sufficientto warrant denial of the defendant's summary judgment motion (id. at 218-219). This issignificantly different from the case before us. Plaintiff's expert merely noted the degenerationwithout contesting defendant's expert's opinion that it was a preexisting condition and notcausally related to the accident. Thus, no issue of fact was raised.
Defendant also argues that there is a 1�-year gap in plaintiff's treatment from June 2008 toDecember 2009. As defendant first raised this issue in his reply affirmation in support of themotion, it is not properly before us (seeTadesse v Degnich, 81 AD3d 570 [2011]). We note however, that, although Dr. Perezstated in her follow-up exam of December 9, 2009 that plaintiff had been receiving chiropracticand physical therapy treatment "on the dates set forth in the appendix to this affidavit," no suchappendix appears in the record before us. As with her other allegations of treatment, plaintiff"inexplicably has provided no competent supporting documentation of this 'medical treatment' "(Thompson, 15 AD3d at 99).[*3]
Defendant made a prima facie showing of entitlement tojudgment as a matter of law with respect to plaintiff's 90/180-day claim by submitting plaintiff'sbill of particulars, which provided that, immediately after the accident, plaintiff was confined tobed and home for only two days and approximately one week respectively (see Williams v Baldor Specialty Foods,Inc., 70 AD3d 522 [2010]). In opposition, plaintiff failed to raise an issue of fact.
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Saxe, J.P., Sweeny, Acosta, DeGrasse and Abdus-Salaam, JJ.
Footnote *: Morrissey, 'Threshold Law':Is a Contemporaneous Exam by the Court of Appeals in Order?, NYLJ, Jan. 18, 2011.