| Moore v Almanzar |
| 2013 NY Slip Op 00695 [103 AD3d 415] |
| February 5, 2013 |
| Appellate Division, First Department |
| Nicole Moore, Appellant, v Francisco Almanzar et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin ofcounsel), for respondents.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered January 17,2012, which, to the extent appealed from, granted defendants' motion for summaryjudgment dismissing the claims of serious injury under the permanent and significantlimitation categories of Insurance Law § 5102 (d), unanimously affirmed, withoutcosts.
Defendants established prima facie that the injuries that plaintiff allegedly sustainedto her cervical and lumbar spine, shoulders, and knees were not caused by the motorvehicle accident. They submitted evidence that plaintiff suffered neck and lower backinjuries in an earlier accident, and reports by a radiologist and an orthopedist opining thatthe MRI films of the allegedly injured body parts revealed a chronic preexistingcondition and no radiographic evidence of trauma or causally related injury (see Spencer v Golden Eagle,Inc., 82 AD3d 589, 590-591 [1st Dept 2011]).
Plaintiff failed to raise an issue of fact in opposition. The limitations found by herexpert regarding plaintiff's left shoulder were too minor to be deemed "significant"within the meaning of Insurance Law § 5102 (d) (see Phillips v Tolnep LimoInc., 99 AD3d 534 [1st Dept 2012]). Plaintiff's orthopedic expert noted thatdefendants' expert found degeneration in her right shoulder on the MRI, which plaintiff'sradiologist confirmed, but failed to address these findings. Plaintiff submitted no recentquantifications of range-of-motion restrictions in her spine or knees (see Vega v MTA Bus Co., 96AD3d 506 [1st Dept 2012]), and failed to address the evidence that her neck, backand knee injuries were preexisting conditions. Concur—Friedman, J.P., DeGrasse,Richter, Abdus-Salaam and Feinman, JJ.