Moore v Almanzar

Moore v Almanzar 2013 NY Slip Op 00695 Decided on February 5, 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 February 5, 2013
Friedman, J.P., DeGrasse, Richter, Abdus-Salaam, Feinman, JJ.
9163 301129/10

[*1]Nicole Moore, Plaintiff-Appellant,

v

Francisco Almanzar, et al., Defendants-Respondents.




Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn
(Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered January 17, 2012, which, to the extent appealed from, granted defendants' motion for summary judgment dismissing the claims of serious injury under the permanent and significant limitation categories of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established prima facie that the injuries that plaintiff allegedly sustained to her cervical and lumbar spine, shoulders, and knees were not caused by the motor vehicle accident. They submitted evidence that plaintiff suffered neck and lower back injuries in an earlier accident, and reports by a radiologist and an orthopedist opining that the MRI films of the allegedly injured body parts revealed a chronic preexisting condition 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 her expert regarding plaintiff's left shoulder were too minor to be deemed "significant" within the meaning of Insurance Law § 5102(d) (see Phillips v Tolnep Limo Inc., 99 AD3d 534 [1st Dept 2012]). Plaintiff's orthopedic expert noted that defendants' expert found degeneration in her right shoulder on the MRI, which plaintiff's radiologist confirmed, but failed to address these findings. Plaintiff submitted no recent quantifications of range-of-motion restrictions in her spine or knees [*2](see Vega v MTA Bus Co., 96 AD3d 506 [1st Dept 2012]), and failed to address the evidence that her neck, back and knee injuries were preexisting conditions.

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

ENTERED: FEBRUARY 5, 2013

CLERK