Summary
finding defendants demonstrated absence of causation through report of orthopedist who opined plaintiff's post-accident medical records showed no complaints of right shoulder pain and were inconsistent with any claim of traumatic injury to right shoulder and plaintiff did not seek treatment for claimed right shoulder injuries for several months after accident
Summary of this case from Roth v. 2810026 Canada Ltd.Opinion
06-22-2017
Maria BARRERAS, Plaintiff–Appellant, v. Francisco Martinez VARGAS, et al., Defendants–Respondents.
Robert G. Goodman, P.C., New York (Robert G. Goodman of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondents.
Robert G. Goodman, P.C., New York (Robert G. Goodman of counsel), for appellant.
Marjorie E. Bornes, Brooklyn, for respondents.
SWEENY, J.P., MAZZARELLI, ANDRIAS, MOSKOWITZ, GISCHE, JJ.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 25, 2016, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the claim of serious injury ( Insurance Law § 5102[d] ) to the right shoulder, unanimously reversed, on the law, without costs, and the motion denied.
Defendants made a prima facie showing that plaintiff did not sustain a serious injury to her right shoulder by submitting the report of their radiologist, who opined that plaintiff's
MRI showed longstanding degenerative tears and that there was no evidence to suggest that plaintiff sustained a traumatic injury (see Kang v. Almanzar, 116 A.D.3d 540, 984 N.Y.S.2d 42 [1st Dept. 2014] ). Defendants further demonstrated an absence of causation through the report of their orthopedist, who opined that plaintiff's post-accident medical records, which showed no complaints of right shoulder pain, were inconsistent with any claim of traumatic injury to her right shoulder (see Frias v. Gonzalez–Vargas, 147 A.D.3d 500, 501, 47 N.Y.S.3d 30 [1st Dept.2017] ). In addition, plaintiff did not seek treatment for her claimed right shoulder injuries until several months after the accident (see Jones v. MTA Bus Co., 123 A.D.3d 614, 615, 999 N.Y.S.2d 68 [1st Dept.2014] ; see also Henchy v. VAS Express Corp., 115 A.D.3d 478, 479, 981 N.Y.S.2d 418 [1st Dept. 2014] ).
In opposition, plaintiff raised an issue of fact (see Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ). Contrary to defendants' contention, plaintiff's emergency room records reflect contemporaneous complaints of pain, since X rays of the right shoulder were ordered at the time. Plaintiff's treating physician noted that plaintiff had undergone physical therapy in the months following the accident, and found that she had limited range of motion in her right shoulder. Her orthopedic surgeon observed rotator cuff and superior labral tears during surgery, measured range-of-motion limitations two years after the surgery, and provided a sufficient opinion, based on his treatment of plaintiff, his review of the MRI report, and his observations during surgery, that, although there were degenerative conditions in plaintiff's shoulder consistent with her age, the tears were causally related to the accident (see Liz v. Munoz, 149 A.D.3d 646, 53 N.Y.S.3d 276 [1st Dept.2017] ; Swift v. New York Tr. Auth., 115 A.D.3d 507, 981 N.Y.S.2d 706 [1st Dept.2014] ).