Eason v. Blacker

Appeal from an order of the Supreme Court (Med-daugh, J.), entered May 20, 2016 in Sullivan County, which granted defendants’ motion for summary judgment dismissing the amended complaint.

On January 10, 2013, plaintiff was a front-seat passenger in a vehicle owned and operated by defendant Alison Mary Miller when it was struck by a vehicle owned and operated by defendant April Neuman Blacker as Miller attempted to change lanes. Plaintiff subsequently commenced this action alleging that he sustained serious injuries within the meaning of Insurance Law § 5102 (d) as a result of the accident.^[1] After joinder of issue and completion of discovery, Blacker joined in Miller’s motion for summary judgment dismissing the amended complaint on the ground that plaintiff did not sustain a serious injury. Supreme Court granted defendants’ motion and plaintiff now appeals.

In his bill of particulars, plaintiff asserted that he sustained injuries to his cervical and thoracic spine and right knee constituting serious injuries within the significant disfigurement, permanent consequential limitation of use, significant limitation of use and 90/180-day categories (see Insurance Law § 5102 [d]).^[2] Defendants met their initial burden of establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting a transcript of plaintiff’s deposition, his medical records and the affirmation of Robert Hendler, an orthopedic surgeon who rendered his opinion based on a review of plaintiff’s medical records without conducting a physical examination of plaintiff (see D’Auria v Kent, 80 AD3d 956 , 957-958 [2011]; see also Franchini v Palmieri, 1 NY3d 536 , 537 [2003]).

With respect to the claims that the injuries to plaintiff’s cervical and thoracic spine constituted serious injuries within the permanent consequential limitation and/or significant limitation of use categories, Hendler noted that plaintiff’s medical records, including images taken prior to the accident,

The foregoing was sufficient to demonstrate defendants’ entitlement to summary judgment dismissing the amended complaint, thereby shifting the burden to plaintiff to raise a triable issue of fact. In opposition to the motion, plaintiff submitted the report of Charles Episalla, an orthopedic surgeon who reviewed plaintiff’s medical records. Although Episalla also concluded that plaintiff had a preexisting history of cervical and thoracic spine pain and degenerative disc disease, he failed to set forth any “objective medical evidence distinguishing [plaintiff’s] preexisting condition from the injuries claimed to have been caused by this accident” (Thomas v Ku, 112 AD3d 1200 , 1201 [2013] [internal quotation marks, brackets and citation omitted]; see Sul-Lowe v Hunter, 148 AD3d 1326 , 1329 [2017]; Dudley v Imbesi, 121 AD3d 1461 , 1462 [2014]; Cirillo v Swan, 95 AD3d 1401 , 1402 [2012]; Howard v Espinosa, 70 AD3d at 1093-1094 ). His opinion likewise fails to identify any objective medical evidence that causally related plaintiff’s alleged knee injury to the accident (see Womack v Wilhelm, 96 AD3d at 1311 ). Furthermore, although records submitted by defendants document diminished ranges of motion in plaintiff’s cervical and thoracic spine and right knee, plaintiff submitted no objective medical evidence linking such limitations to the accident (see id.; Cirillo v Swan, 95 AD3d at 1402 ).^[3] Finally, as to the 90/180-day category, plaintiff submitted no proof that his usual and customary activities were curtailed in any way as a result of the accident, alleging only that he was restricted from work due to surgery for an unrelated condition (see Shea v Ives, 137 AD3d at 1406 ; Clausi v Hall, 127 AD3d at 1327 ; Cole v Roberts-Bonville, 99 AD3d at 1148 ). Accordingly, Supreme Court properly granted defendants’ motion for summary judgment dismissing the amended complaint.

Peters, P.J., Garry, Rose and Aarons, JJ., concur.

Ordered that the order is affirmed, with costs.