Kyreese L. Franklin, Appellant,v.Carmen Rosa Gareyua, et al., Respondents.BriefN.Y.March 21, 2017November 10, 2016 COURT OF APPEALS, STATE OF NEW YORK CLERK, COURT OF APPEALS HALL 20 EAGLE STREET ALBANY, NEW YORK 12207 Re: Franklin v. Gareyua APL-2016-00193 May it Please the Court: Please accept this letter as Plaintiff-Appellants' comments and arguments on this appeal, being reviewed pursuant to §500.11 of this Court's rules, from the Order of the Appellate Division, First Department, entered on February 9, 2016, which affirmed the Order of the Supreme Court, Bronx County (Fernando Tapia, J.), entered June 17, 2014, which partially granted defendants’ motion for summary judgment to the extent of dismissing plaintiff's claim that he suffered a serious injury to his left shoulder within the meaning of Insurance Law § 5102(d). There exists contradictory rules of law within the Appellate Division, First Department, as well as each of the Appellate Divisions of this State, resulting in conflicting results based on the same or similar facts depriving litigants of a consistent rule of law to inform them as to how to proceed, and what proof is required when opposing a motion for summary judgment on the issue of serious injury. It is respectfully submitted that a consistent rule should be that a plaintiff raises a triable issue on causation through a non-conclusory affirmation of a treating physician which is based on substantial evidence, including such factors as a history of no prior injury or complaints to the affected area, the physician's personal review of an MRI or CT Scan, the physician's personal observation of the damaged areas during surgery, the physician's observations of the patient over the course of treatment, and the physician's measurements of limitations of range of motion, without directly addressing or rebutting evidence of degeneration as found by the two dissenting Justices in his case. Defendants-Respondents moved for Summary Judgment in the Page 2 lower court claiming that Plaintiff-Appellant did not meet the no-fault serious injury threshold. Specifically, in relation to the left shoulder injuries, Defendants-Respondents claimed both that Plaintiff suffered from chronic impingement and also that he was fully functional to perform all normal activities without any restriction. (R 22). Defendants-Respondents attached to their motion the report of a radiologist, Dr. Robert Tantleff, who opined that there was anatomically no anterior superior labrum in the shoulder and that he saw mild osteoarthritic changes which were noted on the MRI. (R 45). In opposition, Plaintiff-Appellant submitted the affirmation of his treating orthopedist, Dr. Louis C. Rose (R188-196), who opined that Plaintiff's shoulder injuries were causally related to the rear-end impact of the car accident. (R 193). Dr. Rose detailed substantial proof to support his findings, including Plaintiff's asymptomatic history (R 189 ¶ 2), immediate onset of pain to the left shoulder noted in the hospital record (R 189 ¶ 2), significant limitation of range of motion and positive impingement test of the left shoulder on physical Page 3 examination performed the day after the accident (R 189), Dr. Rose's independent review of Plaintiff's left shoulder MRI (R 190 ¶ 5), Dr. Rose's personal observations during surgery as well as intra-operative photographs where he marked the presence of the glenoid labrum that defendant's radiologist opined was missing as well as specific indications of traumatic injury (R 191 ¶ 6 & 195-196), Plaintiff's treatment records, and Plaintiff's range of motion findings over his course of treatment (R 189-193). In their reply, Defendants-Respondents raised for the first time a finding of mild AC joint arthorsis noted in a finding in Plaintiff's radiologist's left shoulder MRI report. Defendants argued that Dr. Rose had failed to address the finding in Plaintiff's MRI report of “mild ac joint arthrosis,” ignoring the fact that Dr. Rose personally reviewed the MRI film and listed his findings which did not include mild ac joint arthrosis or any other degenerative condition. (R 190 ¶ 5). The lower court granted Defendant's motion only as it related to Plaintiff's left shoulder. That decision was predicated on the lower Page 4 court's conclusion that Plaintiff's treating physician's expert affirmation “never addressed the defendants' prima facie showing that plaintiff's left shoulder condition was degenerative or pre-existing,” citing Kendig v. Kendig, 115 A.D.3d 438 (1st Dept 2014) and Rampersaud v. Eljamali, 100 A.D.3d 508 (1st Dept 2012). (R 10-13). In a Decision and Order dated and entered on February 9, 2016, the Appellate Division, First Department affirmed the order of the lower court with two justices dissenting. The majority stated in relevant part that “Louis C. Rose, M.D., did not refute or address the findings of preexisting degeneration.” The dissent stated in relevant part that the non- conclusory affirmation of Dr. Rose “ascribing the injuries to a different, yet equally plausible explanation (i.e. the accident) ... created a triable issue of fact as to whether the accident caused a serious injury to his left shoulder....” A review of appellate decisions in the First Department, and indeed in each of the Appellate Departments within this State, shows that there are two contradictory rules of law resulting in opposite Page 5 results based on the same or similar facts. One rule holds that once a defendant has met its burden of proof by showing that an injury was pre-existing or caused by a pre-accident degenerative condition, the plaintiff's expert, normally his/her treating physician, is required to directly address and rebut the opinions of the defendant's experts. That is the rule which the majority below applied in this case. The other rule, applied by the two dissenting Justices below, holds that a plaintiff's expert raises a triable issue of fact by ascribing the injuries to a different yet equally plausible cause, namely the accident, based on a non-conclusory report or affirmation showing substantial evidence including factors such as a history of no prior injury or complaints to the affected area, the physician's personal review of the MRI, the physician's observations of the injuries during surgery, the physician's observations of the patient over the course of treatment, and the physician's measurements of the limitations of range of motion, without directly addressing or rebutting contrary opinions of degeneration. Page 6 In its decision, the majority below relied upon Alvarez v NYLL Mgt. Ltd., 120 A.D.3d 1043 (1st Dept 2014), aff'd 24 N.Y.3d 1191 (2015) in support of the maxim that a plaintiff fails to raise a triable issue of fact where he/she does not directly address all findings of degenerative conditions regardless of the sufficiency of the remainder of his/her expert's affirmation. The dissent, on the other hand, cited cases such as Caines v Diakite, 105 A.D.3d 404, 404 (1st Dept 2013); Camacho v Espinoza, 94 A.D.3d 674 (1st Dept 2012); Grant v United Pavers Co. Inc., 91 A.D.3d 499, 500 (1st Dept 2012); Jeffers v Style Tr. Inc., 99 A.D.3d 576, 577 (1st Dept 2012); Yuen v Arka Memory Cab Corp., 80 A.D.3d 481, 482 (1st Dept 2011) and Linton v Nawaz, 62 A.D.3d 434, 443 (1st Dept 2009) aff’d 14 NY3d 821 (2010), in support of the maxim that plaintiff's treating physician creates an issue of fact by ascribing the plaintiff's injuries to a different yet equally plausible cause, namely, the accident, even if he/she does not directly address findings of degenerative conditions. Page 7 The law as stated in those prior decisions relied upon by the dissent below, that a plaintiff's expert need not specifically address degenerative findings when opining as to causation, is irreconcilable with the law as stated by the majority below, in Alvarez, and in other decisions such as Rampersaud v. Eljamali, 100 A.D.3d 508 (1st Dept 2012) and Kendig v. Kendig, 981 N.Y.S.2d 411 (1st Dept 2014) which hold that a plaintiff's expert must specifically address and rebut findings of degeneration in all circumstances. Indeed many of the aforementioned cases, such as Alvarez, and the present case, contain strong dissents which apply the contrary maxim that a treating physician's affirmation which ascribes the injury to the accident presents an equally plausible cause creating a question of fact. There has been no attempt by the Appellate Divisions or the Court of Appeals to reconcile or distinguish these two diametrically opposed maxims of the same legal rule. Rather, both exist in parallel to each other, leaving the litigant in the untenable position of being unable to determine how to proceed in opposing a motion for summary judgment and what Page 8 proof will be sufficient. Indeed, in contrast to the majority decision below, the Appellate Division, First Department recently reached the exact opposite conclusion in a virtually identical case. See Burgos v. Diop 140 A.D.3d 521 (1st Dept 2016). In Burgos the court found that the plaintiff raised a triable issue of fact under proof identical to that in present case. Defendants established a prima facie case regarding the plaintiff's shoulders in Burgos by submitting an orthopedist report finding full range of motion, and a radiologist report finding that the MRI films of the plaintiff's shoulders showed only pre-existing degenerative conditions and no acute trauma changes. While the trial court held that plaintiff's failure in his opposition to deny the findings of degeneration or address them in any way was “a fatal omission” the Appellate Division, First Department reversed on appeal holding that the plaintiff's orthopedic surgeon: sufficiently addressed the causation issue, as his opinion that there was a causal relationship was based on his own treatment Page 9 of plaintiff, review of plaintiff's MRI records, and observations during the surgeries, as well as the history provided by plaintiff. Burgo's v. Diop 140 A.D.3d 521, 522 (1st Dept 2016) (emphasis added). This is a lower level of proof to that provided by Plaintiff- Appellant's treating orthopedist, which included marked intra- operative photos detailing the traumatic injuries, in the present case with a precisely opposite outcome. This clear dichotomy of law is not confined to the Appellate Division, First Department. It is found in all four Departments of the Appellate Division. In the Second Department there exists a series of cases which indicate that a plaintiff's expert must directly address findings of degeneration. See, e.g., Cardillo v Xenakis, 31 A.D.3d 683 (2nd Dept 2006); Zarate v McDonald, 31 A.D.3d 632 (2nd Dept 2006); Gomez v Epstein, 29 A.D.3d 950 (2nd Dept 2006); Kaplan v Vanderhans, 26 A.D.3d 468 (2nd Dept 2006); Giraldo v. Mandanici, 24 A.D.3d 419 (2nd Dept 2005). Page 10 As in the First Department, the Second Department has a series of contrary parallel precedents holding that the plaintiff's expert does not have to directly address findings of degeneration to make out a triable issue of fact. See e.g, Khaimov v. Armanios, 85 A.D.3d 978 (2nd Dept. 2011); Jilani v. Palmer, 83 A.D.3d 786, 787 (2nd Dept 2011); Fraser-Baptiste v. New York City Tr. Auth., 81 A.D.3d 878 (2nd Dept 2011); Harris v. Boudart, 70 A.D.3d 643 (2nd Dept. 2010). In Jilani, for example, although the defendants met their burden by relying on findings of degeneration in a MRI report which asserted that there were no “abnormalities causally related to the accident,” the plaintiff created an issue of fact by submitting an affirmation by his chiropractor who causally related the plaintiff's injuries to the accident without addressing degenerative findings. Id. Similarly, in Fraser- Baptiste, the Second Department held that the plaintiff raised a triable issue of fact by submitting physician reports attesting that the plaintiff's limitations resulted from trauma causally related to the collision. The Second Department stated in Fraser-Baptiste: Page 11 To the extent that those reports did not specifically address the findings in the reports submitted by the defendants that the abnormalities in the tested areas were degenerative, rather than traumatic, the findings of the plaintiff's doctors that her injuries were indeed traumatic and were causally related to the collision of December 9, 2007, implicitly addressed the defendants' contentions that the injuries were degenerative. Fraser-Baptiste v. New York City Tr. Auth., 81 A.D.3d at 879 (2nd Dept 2011)(emphasis added). The same applied In Harris, where the court found that the plaintiff's expert sufficiently addressed the issue of a prior injury by noting that plaintiff was asymptomatic and without treatment before the subject accident finding that “plaintiff was not obliged to do more to overcome the defendant's motion for summary judgment” Harris v. Boudart, 70 A.D.3d at 645 (2nd Dept. 2010). In the Third Department, cases such as Thomas v. Ku, 112 A.D.3d 1200 (3rd 2013) and Davis v. Cottrell, 101 A.D.3d 1300 (3rd Dept. 2012) hold that where a defendant raises the issues of degeneration, plaintiff must address it directly. See also Shea v Ives, Page 12 137 A.D.3d 1404, 1405 (3rd Dept. 2016). The Third Department likewise has contrary parallel precedents holding that the plaintiff's expert does not have to directly address findings of degeneration to make out a triable issue of fact. In Lipscomb v. Cohen, 93 A.D.3d 1059, 1061 (3rd Dept 2012), for example, the Third Department held that a plaintiff's treating expert's opinion of causal relation to the accident based on his/her review of x-rays, MRIs, an asymptomatic pre-accident history, and examination and treatment of the plaintiff is sufficient to create a question of fact. See also, Colavito v. Steyer, 65 A.D.3d 735, 736 (3rd Dept. 2009). These contrary parallel precedents exist as well in the Fourth Department. Cases such as Caldwell v. Grant, 31 A.D.3d 1154 (4th Dept 2006) and Clarke v. Dangelo, 109 A.D.3d 1194 (4th Dept 2013) hold that a plaintiff's expert must expressly address all findings of degeneration in order to raise a triable issue of fact regardless of the sufficiency of the plaintiff's physician's affirmation. Conversely, in Terwilleger v. Knickerbocker, 81 A.D.3d 1350, 1351 (4th Dept 2011), Page 13 the Fourth Department held that although defendants met their initial burden of proof that plaintiff's injuries were attributable to pre-existing conditions, the plaintiff raised an issue of fact sufficient to defeat the motion by submitting the affidavits of his treating physician and chiropractor who averred that plaintiff was asymptomatic prior to the accident and that after the accident plaintiff was suffering from a quantified limitation of range of motion and therefore causally attributed plaintiff's injuries to the accident. The Court held that: Contrary to defendants' contention, the affidavits submitted by plaintiff contain the requisite objective medical findings that raise issues of fact whether plaintiff sustained a serious injury. Terwilleger v. Knickerbocker, 81 A.D.3d at 1351 (4th Dept 2011); See also, Wilson v Colosimo, 101 A.D.3d 1765, 1767 (4th Dept. 2012). Given the splits in authority among the Departments of the Appellate Division, and indeed within the Departments themselves, it is submitted that this Court should take it upon itself the set forth a single clear precedent of when a plaintiff's treating physician's Page 14 affirmation raises a triable issue of fact, without having to directly address contrary evidence of degeneration. To date, the Court of Appeals has not addressed the dichotomy of conflicting rules of law directly. In Alvarez v NYLL Mgt. Ltd., 24 N.Y.3d 1191 (2015), for example, this Court simply affirmed the First Department's order without discussing whether a plaintiff's expert must directly address and rebut the defendant's proof as opposed to providing an equally plausible cause of the injuries based on a non-conclusory physician affirmation with substantial evidence, in order to raise a triable issue of fact. The myriad of conflicting decisions across all four Departments of the Appellate Division leaves the law in this area indeterminable in advance, thereby depriving litigants of knowing what proof is necessary to preserve their rights. A review of the cases where the lack of a specific rebuttal of evidence of degeneration forms a clear rule which, it is submitted, should be adopted by this Court. That is that a non-conclusory affirmation of a treating physician which is based on substantial evidence, including such Page 15 factors as a history of no prior injury or complaints to the affected area, the physician's personal review of an MRI or CT Scan, the physician's personal observation of the damaged areas during surgery, the physician's observations of the patient over the course of treatment, and the physician's measurements of limitations of range of motion, creates a question of fact whether or not it directly rebuts contrary evidence of degeneration. Burgos v. Diop 140 A.D.3d 521 (1st Dept 2016); Caines v Diakite, 105 A.D.3d 404, 404 (1st Dept 2013); Camacho v Espinoza, 94 A.D.3d 674 (1st Dept 2012); Grant v United Pavers Co. Inc., 91 A.D.3d 499, 500 (1st Dept 2012); Jeffers v Style Tr. Inc., 99 A.D.3d 576, 577 (1st Dept 2012); Lipscomb v. Cohen, 93 A.D.3d 1059, 1061 (3rd Dept 2012); Wilson v Colosimo, 101 A.D.3d 1765, 1767 (4th Dept. 2012) ; Yuen v Arka Memory Cab Corp., 80 A.D.3d 481, 482 (1st Dept 2011); Khaimov v. Armanios, 85 A.D.3d 978 (2nd Dept. 2011); Jilani v. Palmer, 83 A.D.3d 786, 787 (2nd Dept 2011); Fraser-Baptiste v. New York City Tr. Auth., 81 A.D.3d 878 (2nd Dept 2011); Terwilleger v. Knickerbocker, 81 A.D.3d 1350, 1351 (4th Dept 2011); Harris v. Boudart, 70 A.D.3d 643 Page 16 (2nd Dept. 2010); Linton v Nawaz, 62 A.D.3d 434, 443 (1st Dept 2009) aff’d 14 NY3d 821 (2010); Colavito v. Steyer, 65 A.D.3d 735, 736 (3rd Dept. 2009). This rule leave for the trier of the fact the decision to credit the opposing opinion by defendant's physicians or even medical providers versus the non-conclusory opinions of a treating physician which is supported by significant evidence as was found by the dissenting Justices in the court below. With gratitude for your Honors' consideration, I am Very truly yours, MATTHEW J. McMAHON Attorney for Plaintiffs-Appellants Page 17 /s/ Matthew J. McMahon EXHIBIT A SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ---------------------------------------------------------------){ KYREESE L. FRANKLIN, Plaintiff-Appellant, ,...., against,...., CARMEN ROSA GAREYUA and MENSCH MANAGEMENT INC, Defendants-Respondents, ---------------------------------------------------------------){ DECISION AND ORDER WITH NOTICE OF ENTRY File No: 764495 Index#: 20308/2012E (Bronx County) PLEASE TAKE NOTICE, that the annexed is a true and complete copy of the Decision and Order of the Supreme Court of the State ofNew York, Appellate Division- First Department, dated February 9, 2016, filed and entered with the Clerk of that Court on April9, 2016. Dated: Bronx, New York July 27, 2016 TTHEW J. McMAHON McMAHON & McCARTHY Attorneys for Plaintiff-Appellants 25 East 233rd St. Bronx, NY 10470 (718) 324-8900 To: Baker, McEvoy Morrissey & Moskovits, PC Attorneys for Defendants Carmen Rosa Gareyua s/h/a Carmen Rosa Gareyua and Mensch Management Inc On Metro Tech Center Brooklyn, NY 11201 212-857-8230 Fax 212-857-8238 FilED Apr 04 2016 Bronx County Clerk Tom, J.P., Friedman, Andrias, Gische, Kapnick, JJ. 16057 Kyreese L. Franklin, Plaintiff-Appellant, -against- Carmen Rosa Gareyua, et al., Defendants-Respondents. ~ Index 20308/ 12E McMahon & McCarthy, Bronx (Daniel C. Murphy of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Colin F. Morrissey of counsel), for respondents. Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 17, 2014, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing plaintiff's claim that he suffered a serious injury to his left shoulder within the meaning of Insurance Law§ 5102(d), affirmed, without costs. .. Plaintiff's appellate brief does not challenge Supreme Court's determination that defendants made a prima facie showing that plaintiff did not suffer a serious injury to his left shoulder as a result of the motor vehicle accident at issue. Defendants submitted the affirmed reports of a radiologist and orthopedic surgeon, who opined that the conditions present in his left shoulder were degenerative in nature and unrelated to any 7 FILED Apr 04 2016 Bronx County Clerk trauma (see Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 (1st Dept 2014], affd 24 NY3d 1191 [2015]). Defendants also submitted plaintiff's own medical records, which found arthrosis and no traumatic injury (id.). Specifically, Jeffrey N. Lang, M.D., opined in a radiological report to plaintiff's treating orthopedic surgeon that the postaccident X ray of plaintiff's left shoulder showed ~no evidence of a fracture or other focal osseous abnormality" nor any evidence of ~dislocation." In addition, an MRI report to plaintiff's treating orthopedic surgeon by Jack Lyons, M.D., opined that the postaccident MRI of the left shoulder, while it revealed "mild AC joint arthrosis and malalignment of the AC joint" and mild bursitis, showed ~no .. evidence of fracture, dislocation, or bone marrow abnormalities to be suspicious for bone contusions, stress fractures, or acute trabecular microfractures." The plain import of the reports by Dr. Lang and Dr. Lyons - both of which, to reiterate, were prepared at the request of plaintiff's treating orthopedic surgeon and are included within his own medical records - is that the X ray and MRI of his left shoulder showed no evidence of traumatic injury but only of degenerative conditions such as arthrosis and bursitis. In opposition, plaintiff failed to raise a triable issue of 8 FILED Apr 04 2016 Bronx County Clerk fact as to causation. His treating orthopedist, Louis c. Rose, M.D., did not refute or address the findings of preexisting degeneration and lack of traumatic injury, set forth in the reports by Dr. Lang and Dr. Lyons contained in plaintiff's own medical records (as described above), nor did Dr. Rose explain why degeneration was not the cause of the left shoulder injury (see Alvarez, 120 AD3d at 1044; Paduani v Rodriguez, 101 AD3d 470, 471 [1st Dept 2012]). Given that Dr. Lang and Dr. Lyons plainly reported that no evidence of traumatic injury was found in the X ray and MRI of the left shoulder, it is immaterial that their reports did not use the word ~preexistingn to describe the degenerative conditions that were detected. The dissent, taking the position that an issue of fact exists as to whether the accident caused plaintiff's shoulder injury, does not deal with the aforementioned opinions of Dr. Lang and Dr. Lyons in plaintiff's own medical records. It appears to be the dissent's view that the support in plaintiff's medical records for the shoulder injury having a degenerative ,. origin are of no moment because plaintiff's medical expert, Dr. Louis C. Rose, in his affirmation prepared for this litigation, offered a "diagnosis (that] . . . contrasts significantly with the one proffered by defendants' experts.n However, the dissent 9 FILED Apr 04 2016 Bronx County Clerk offers no support for its view that there is a "factual disagreement" between the defense experts and plaintiff's expert (Dr. Rose) on the diagnosis of the shoulder injury, as opposed to its etiology. Specifically, the dissent simply assumes that the defense experts' diagnosis of osteoarthritis of the AC joint and chronic impingement syndrome were inconsistent with the presence of tears to the labrum and rotator cuff, which was Dr. Rose's diagnosis. Nothing in the record supports the assumption that the conditions diagnosed by the defense experts do not result in tears to the labrum and rotator cuff. We have considered plaintiff's remaining contentions and find them unavailing. All concur except Gische and Kapnick, JJ. who dissent in a memorandum by Gische, J. as follows: 10 FILED Apr 04 2016 Bronx County Clerk GISCHE, J. (dissenting) I agree with the majority that it was incumbent upon plaintiff to address the issue of causation in opposition to defendants' motion. However, I dissent with respect to the majority's conclusion that plaintiff did not provide sufficient evidence to raise a question of fact as to whether the injuries ,. were the product of a degenerative condition or causally related to the accident. Plaintiff alleged injuries to his left shoulder following a rear-end collision in which defendants' automobile struck his vehicle while he was stopped at a red light. A day after the accident, plaintiff sought treatment with an orthopedic surgeon, Dr. Louis C. Rose, to whom he complained of shoulder, neck, and back pain. During his initial evaluation, in addition to finding range of motion limitations in plaintiff's left shoulder, Dr. Rose also noted tenderness of the AC joint and a rotator cuff insertion with impingement~ Plaintiff informed Dr. Rose that he had no previous orthopedic injuries and had been active before the accident. When plaintiff's symptoms worsened, Dr. Rose ordered an MRI, which revealed malalignment of the AC joint with impingement and 11 - - FILED Apr 04 2016 Bronx County Clerk tendon bursitis. After rev1ewing the results of the MRI, Dr. Rose recommended that plaintiff undergo arthroscopic surgery. During the procedure performed by Dr. Rose, he observed and took intraoperative photos showing an internal derangement of the left shoulder with a partial tear of the glenoid labrum, a tear of the rotator cuff, and hypertrophic synovium with acromioplasty. Based upon his treatment of the plaintiff over a two-year period, commencing immediately after the accident, his own independent review of the MRI results, the intraoperative findings that he observed firsthand, and unimproved range of motion, Dr. Rose concluded, with a reasonable degree of medical certainty, that <: the left shoulder injuries were causally related to the rear-end impact of the car accident. In the first instance, the diagnosis rendered by plaintiff's expert contrasts significantly with the one proffered by defendants' experts. While defendants' medical professionals diagnosed osteoarthritis of the AC joint and opined that the surgical findings and symptomatology were consistent with chronic impingement syndrome, Dr. Rose diagnosed tears to the labrum and rotator cuff. The parties' factual disagreement on the correct diagnosis of plaintiff's left shoulder condition necessarily 12 FILED Apr 04 2016 Bronx County Clerk supports the varying opinions regarding causation and underscores that the issue cannot be resolved by summary adjudication. By ascribing the injuries to a different, yet equally plausible explanation (i.e., the accident), plaintiff created a triable issue of fact as to whether the accident caused a serious injury to his left shoulder {Camacho v Espinoza, 94 AD3d 674, 674 [1st Dept 2012]; Caines v Diakite, 105 AD3d 404, 404 [1st Dept 2013]). The majority posits that the defense experts' diagnoses of a degenerative condition may not be inconsistent with plaintiff's expert's findings of tears to the labrum and rotator cuff. Given defendants' experts' complete failure to reference or diagnose any tears, this conclusion is speculative. In addition, plaintiff submitted objective medical evidence demonstrating that the onset of symptoms and range of motion limitations only occurred immediately after the accident, and have since not abated, which generally supports his expert's opinion that the accident caused the injuries (Eteng v Dajos Transp., 89 AD3d 506, 507-508 [1st Dept 2011]). Contrary to the majority's view, plaintiff did not have to employ any specific language to rebut defendants' experts' findings that the injuries were preexisting and degenerative in nature in order to create an 13 FILED Apr 04 2016 Bronx County Clerk issue of fact (Linton v Nawaz, 62 AD3d 434, 443 [1st Dept 2009] aff'd 14 NY3d 821 [2010]; Grant v United Pavers Co. Inc., 91 AD3d 499, 500 [1st Dept 2012]). Given the substantial nature of the proof proffered by Dr. Rose, he was not required, as the majority suggests, to reconcile his conclusion with findings reached by two of plaintiff's radiologists who detected no signs of acute traumatic injury in the left shoulder upon initial imaging (cf. Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], aff'd 24 NY3d 1191 [2015]). In non conclusory terms, Dr. Rose, who was plaintiff's treating physician, attributed the injuries to an entirely different etiology by chronicling his initial examination of plaintiff the day after the accident, his consequent need for surgery, during which time Dr. Rose personally observed and repaired tears, and the persisting deficit limitations in the years since. Dr Rose's opinion that the left shoulder condition was consistent with traumatic injury resulting from the accident, signifiying an "unmistakable rejection of defendants' experts' theory is entitled to equal weight and sufficed to raise a triable issue of fact (Linton, 62 AD3d at 443; Yuen v Arka Memory Cab Corp., 80 AD3d 481, 482 [1st Dept 2 011] ) . 14 FILED Apr 04 2016 Bronx County Clerk Similarly, plaintiff did not have to expressly negate the presence of degenerative findings because there was other evidence in the record that he had been asymptomatic before the accident, had denied sustaining any previous orthopedic injuries, and had provided an explanation for why defendants' experts' findings did not conclusively establish the cause of the claimed injuries (Jeffers v Style Tr. Inc., 99 AD3d 576, 577 [1st Dept 2012]). To the extent that the medical evidence offered by the parties in support of their respective positions cannot be reconciled, such conflicting opinions require credibility determinations that fall within the purview of a trier of fact to resolve (Clindinin v New York City Hous. Auth., 117 AD3d 628, 629 [1st Dept 2014)) . Accordingly, I would reverse the motion court's order and deny defendant summary judgment because there are issues of fact 15 FILED ~pr 04 2016 Bronx County Clerk regarding whether plaintiff's left shoulder injury was a serious injury within the meaning of the Insurance Law. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: FEBRUARY 9, 2016 APPEltATE OiVIStON SUPREMf. COURT FIRST DePARTMENT ·sTATE OF NEW YORK . .. . . ·•i·,MARGARET G. SOWAH. Deputy Clerk of the Appellate· Division ot t~e Supref!le Court First Judicial Depattment ~o:heteby certify{1l have ccmpared thiS copy w•~ the original thereof filed tn-said ... o~ic~. ~n- · '-:-~~ , . ·~nd that the same IS a ccnect transcript thereof. and Qf t~e:~ate ~t ~!d:ortg11ll.l.. =~·. . . . : Wi,.f(f~~OF! ~~ ~ u.'"~~.aml ilfll:-' lll8 seal ollh1s Court . ·-.. ~~·.· '. . ---A . ' r.MI "'-- .~DEPUTY CLERK 16 CLERK EXHIBIT B NET~'ORK SUPREME COURT- COUNTYr"", 'BRONX ~- lc.;~ ~i~p;;~ · \\1 ! SUPREME COURT OF THE STATE OF COUNTY OF BRONX: FRANKLIN,KYREESE L. -against- GAREY1JA,CARMEN ROSA l ' Settle Order 0 ~ Schedule Appearance 0 -·····---·· ·---· - · ··--·- .. i In