Kester v Sendoya

Kester v Sendoya 2014 NY Slip Op 08379 Decided on December 2, 2014 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 December 2, 2014
Mazzarelli, J.P., Acosta, Saxe, Clark, Kapnick, JJ.
13645 101807/11

[*1] Kathryn Kester, Plaintiff-Appellant,

v

Luis Sendoya, et al., Defendants-Respondents.

Lisa M. Comeau, Garden City, for appellant.

Law Firm of Marjorie E. Bornes, Brooklyn (Marjorie E. Bornes of counsel), for respondents.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered September 6, 2013, which, in this action for personal injuries sustained in a motor vehicle accident, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established entitlement to judgment as a matter of law. Defendants submitted evidence, including the affirmed findings of an orthopedist and a radiologist, of preexisting degenerative changes and absence of evidence of recent traumatic or causally related injury to plaintiff's right shoulder (see Rickert v Diaz, 112 AD3d 451 [1st Dept 2013]; Paduani v Rodriguez, 101 AD3d 470 [1st Dept 2012]).

In opposition, plaintiff failed to raise an issue of fact to establish that her shoulder injuries are causally linked to the subject accident (see Perl v Meher, 18 NY3d 208, 217-218 [2011]). While plaintiff's certified medical records may be referenced to show her complaints and the doctor's referral for treatment (see Salman v Rosario, 87 AD3d 482, 483 n [1st Dept 2011]), those records demonstrate that in the months following the February 2010 accident plaintiff sought treatment for other conditions but made no complaint of shoulder pain until June 2010. She was then referred to an orthopedist, but did not seek medical treatment for her shoulder injury until August 2010, some six months after the accident, and had an MRI performed the next month. Absent any evidence of contemporaneous, postaccident treatment or evaluation of plaintiff's shoulder, she failed to raise an issue of fact as to whether her shoulder condition was causally related to the accident (see Henchy v VAS Express Corp., 115 AD3d 478, 479 [1st Dept 2014]; Rosa v Mejia, 95 AD3d 402 [1st Dept 2012]). Furthermore, the affirmed report of her orthopedic surgeon, who first examined plaintiff a year after the accident, was insufficient to raise an issue of fact (see Linton v Gonzales, 110 AD3d 534 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 2, 2014

CLERK