| Paduani v Rodriguez |
| 2012 NY Slip Op 08458 [101 AD3d 470] |
| December 11, 2012 |
| Appellate Division, First Department |
| Segunda Paduani, Appellant, v Charlie Rodriguez,Respondent, et al., Defendant. |
—[*1] Richard T. Lau & Associates, Jericho (Gene W. Wiggins of counsel), forrespondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson Jr., J.), entered October 17,2011, which, in this action for personal injuries sustained in a motor vehicle accident, granteddefendants' motions for summary judgment dismissing the complaint, unanimously affirmed,without costs.
Plaintiff was a passenger in a car owned by defendant Razia Avila and driven by defendantKaystel Avila, when the car collided with a vehicle driven by defendant Rodriguez. Plaintiffalleged that as a result of the accident, she sustained serious injuries to her cervical spine, lumbarspine, and right shoulder under the "significant limitation of use," "permanent consequentiallimitation of use," and 90/180-day categories of Insurance Law § 5102 (d).
Defendants established their entitlement to judgment as a matter of law as to plaintiff's injuryto her cervical spine by submitting their orthopedist's report finding full range of motion with theexception of a minor limitation in one plane, and diagnosing a resolved cervical spine strain (see Castillo v Cinquina, 85 AD3d660 [1st Dept 2011]). The orthopedist's finding of a minor limitation in one aspect of thecervical spine is insufficient to negate the prima facie showing (see Canelo v Genolg Tr., Inc., 82AD3d 584 [1st Dept 2011]; Sone vQamar, 68 AD3d 566 [1st Dept 2009]), and plaintiff failed to raise a triable issue of fact(see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]).
Defendants also met their burden as to the alleged lumbar spine injury by submitting, interalia, the affirmed report of an orthopedist who found full range of motion, and their radiologist'sMRI report finding diffuse multilevel degenerative disc disease and degenerative changesunrelated to trauma, as well as a radiograph report of plaintiff's radiologist finding severedegenerative changes (see Torres vTriboro Servs., Inc., 83 AD3d 563 [2011]; Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [1st Dept2011]). Plaintiff failed to raise a triable issue of fact. While her expert acknowledged in his ownreport MRI findings of degenerative changes in the lumbar spine, he did not address or contestsuch findings, and the MRI report of her radiologist found herniations but did not addresscausation (see Williams v Horman, 95 [*2]AD3d 650 [1stDept 2012]; Rosa v Mejia, 95 AD3d402, 404-405 [1st Dept 2012]). Nor did plaintiff's expert address plaintiff's depositiontestimony that she had sustained a back injury in a prior car accident (see McArthur v Act Limo, Inc., 93AD3d 567 [1st Dept 2012]).
As to plaintiff's right shoulder, defendants established prima facie lack of causation bysubmitting their radiologist's non-conclusory opinion that the supraspinatus tendinosis andacromioclavicular joint disease observed in the MRI film were preexisting degenerativeconditions (see Torres, 83 AD3d at 564; Spencer, 82 AD3d at 590). As with thelumbar spine, plaintiff's expert failed to address evidence that the condition was degenerative inorigin (see Rosa, 95 AD3d at 404-405).
Defendants disproved a 90/180-day injury by submitting plaintiff's deposition testimony,wherein she stated that she was able to babysit her grandchildren after the accident, and was ableto go to the store about a month after the accident, as well as her bill of particulars alleging thatshe was not confined to bed or home after the accident (see Zhijian Yang v Alston, 73 AD3d 562 [1st Dept 2010]). Plaintiffhas not submitted any evidence in opposition. Concur—Andrias, J.P., Friedman,DeGrasse, Manzanet-Daniels and Gische JJ.