Cooper v Hope Ambulette, Inc.

[*1] Cooper v Hope Ambulette, Inc. 2014 NY Slip Op 51765(U) Decided on December 17, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 17, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, P.J., Shulman, Hunter, Jr., JJ.
570705/14

Carolyn Cooper, Plaintiff-Respondent,

against

Hope Ambulette, Inc. and Rafael Vargas, Defendants-Appellants, - and - Akeno Bogle, Defendant.

Defendants Hope Ambulette, Inc. and Rafael Vargas appeal from an order of the Civil Court of the City of New York, Bronx County (David B. Cohen, J.), entered October 15, 2013, which denied their motion for summary judgment dismissing the complaint.

Per curiam.

Order (David B. Cohen, J.), entered October 15, 2013, reversed, with $10 costs, and defendant-appellants' motion for summary judgment dismissing the complaint as against them is granted. The Clerk is directed to enter judgment accordingly.

This negligence action seeks to recover damages for personal injuries allegedly sustained by plaintiff in a February 2008 motor vehicle, injuries which included disc bulges and radiculopathy causing plaintiff neck and back pain. In moving for summary judgment, defendants-appellants established, prima facie, that plaintiff did not sustain a "serious injury" (see Insurance Law § 5102[d]) causally related to the 2008 accident. Defendants submitted affirmed reports of an orthopedist and neurologist, who found no significant range of motion deficits in plaintiff's cervical or lumbar spine, and diagnosed soft tissue injuries that were superimposed upon preexisting neck and back conditions resulting from a 1999 workplace incident involving plaintiff's fall down a flight of stairs. Defendant pointed to evidence demonstrating that plaintiff's medical treatment in connection with her 1999 workplace neck and back injuries was still ongoing at the time of the 2008 vehicular accident underlying this lawsuit.

In opposition, plaintiff failed to raise a triable issue as to causation or aggravation of her preexisting injuries (see Farmer v Ventkate Ind., 117 AD3d 562 [2014]). The affirmed report of plaintiff's doctor failed to address how plaintiff's current neck and back problems resulted from the 2008 vehicular collision as opposed to the 1999 workplace incident (see Style v Joseph, 32 [*2]AD3d 212 [2006]; Carter v Full Serv., Inc., 29 AD3d 342 [2006]). In this regard, plaintiff failed to show how her alleged "new" disc injuries are attributable to the 2008 accident, and are not the natural progression of her earlier workplace injuries or the degenerative changes shown on imaging studies. Nor has plaintiff come forward with evidence sufficient to show that the subject accident exacerbated her pre-existing conditions so severely as to constitute a new serious injury within the meaning of the No—Fault Law (see Suarez v Abe, 4 AD3d 288 [2004]; Brand v Evangelista, 103 AD3d 539 [2013]).

Finally, plaintiff's assertion of an injury in the 90/180-day category is not supported by evidence of a medically determined injury caused by the vehicular accident (see Galarza v J.N. Eaglet Group Inc., 117 AD3d 488 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: December 17, 2014