Summary
In Kester v Sendoya (123 AD3d 418, 418 [1st Dept 2014]), the Appellate Division, First Department, held that "[a]bsent any evidence of contemporaneous, postaccident treatment or evaluation of plaintiff's [injury], she failed to raise an issue of fact as to whether her... condition was causally related to the accident."
Summary of this case from Sliman v. TezanosOpinion
2014-12-2
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.
Lisa M. Comeau, Garden City, for appellant. Law Firm of Marjorie E. Bornes, Brooklyn (Marjorie E. Bornes of counsel), for respondents.
MAZZARELLI, J.P., ACOSTA, SAXE, CLARK, KAPNICK, JJ.
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 A.D.3d 451, 976 N.Y.S.2d 80 [1st Dept.2013]; Paduani v. Rodriguez, 101 A.D.3d 470, 955 N.Y.S.2d 48 [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 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [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 A.D.3d 482, 483 n., 928 N.Y.S.2d 531 [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 A.D.3d 478, 479, 981 N.Y.S.2d 418 [1st Dept.2014]; Rosa v. Mejia, 95 A.D.3d 402, 943 N.Y.S.2d 470 [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 A.D.3d 534, 974 N.Y.S.2d 350 [1st Dept.2013] ).