Dawkins v Cartwright

Dawkins v Cartwright 2013 NY Slip Op 07837 Decided on November 26, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 26, 2013
Mazzarelli, J.P., Acosta, Moskowitz, Manzanet-Daniels, Gische, JJ.
11155 104538/08

[*1]Cynthia Dawkins, Plaintiff-Appellant,

v

Elizabeth Cartwright, et al., Defendants, Metropolitan Life Insurance Company, Defendant-Respondent.




John V. Decolator, Garden City, for appellant.
White & McSpedon, P.C., New York (Michael Cannella of
counsel), for respondent.

Order, Supreme Court, New York County (George J. Silver, J.), entered April 9, 2012, which, to the extent appealed from as limited by the briefs, granted the motions of defendants Metropolitan Life Insurance Company and Elizabeth Cartwright for summary judgment dismissing the complaint in its entirety on the ground that plaintiff failed to establish a serious injury under the "permanent consequential" or "significant" limitation of use categories of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants met their prima facie burden of showing that plaintiff did not suffer a serious injury causally related to the subject motor vehicle accident, by submitting, among other things, the affirmed report of their radiologist, who opined that the conditions shown in the MRIs taken of plaintiff's lumbar and thoracic spine were chronic and degenerative in origin and that there was no evidence of acute traumatic injury (see Cruz v Martinez, 106 AD3d 482, 482 [1st Dept 2013]). Defendants' neurologist also opined, based on his examination of plaintiff and review of her medical records, that plaintiff had preexisting lumbar and cervical spine symptomology and that there was no evidence of any significant injuries resulting from the subject accident. Moreover, defendants submitted plaintiff's medical records, which demonstrated that plaintiff, who was 52 and described as morbidly obese, was receiving physical therapy for chronic lower back pain prior to the accident.

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's radiologist observed degenerative changes and her treating physician did not review any records of plaintiff's prior medical treatment, although her own record of plaintiff's initial examination showed that plaintiff complained of chronic lower back pain since 1999. In these circumstances, the treating physician's conclusory opinion that there was a causal connection between the injuries and the subject accident was insufficient to raise an issue of fact (see Cruz, 106 AD3d at 482; Pommells v Perez, 4 NY3d 566, 574-575 [2005]). [*2]

We need not consider plaintiff's claim in her appellate brief that she sustained a serious injury to her left knee, as she did not allege such injury in her bill of particulars (see Marte v New York City Tr. Auth., 59 AD3d 398 [1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 26, 2013

CLERK