Kyreese L. Franklin, Appellant,v.Carmen Rosa Gareyua, et al., Respondents.BriefN.Y.March 21, 2017To Be Argued By: JOHN E. BONETA New York County Clerk’s Index No. 20308/2012E New York Supreme Court APPELLATE DIVISION—FIRST DEPARTMENT KYREESE L. FRANKLIN, Plaintiff-Appellant, —against— CARMEN ROSA GAREYUA and MENSCH MANAGEMENT INC., Defendants-Respondents. BRIEF FOR PLAINTIFF-APPELLANT d JOHN E. BONETA MCMAHON & MCCARTHY 25 East 233rd Street Bronx, New York 10470 (718) 324-8900 atyjeb@optonline.net Attorneys for Plaintjff-Appellant REPRODUCED ON RECYCLED PAPER i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A PLAINTIFF’S DOCTOR IS NOT REQUIRED TO EXPLICITLY REBUT A DEFENDANT’S DOCTOR’S CLAIM OF DEGENERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ii TABLE OF AUTHORITIES PAGE(S) Cases Alvarez v. NYLL Management LTD., 120 A.D.3d 1043 (1st Dept 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Angeles v. Versace, Inc., 124 A.D.3d 544 (1st Dept 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Araro v. American Medical Response of New York, Inc., 99 A.D.3d 563 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Biascochea v. Boves, 93 A.D.3d 548 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Caines v. Diakite, 105 A.D.3d 404 (1st Dept. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Calcano v. Rodriquez, 103 A.D.3d 490 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Camacho v. Espinoza, 94 A.D.3d 674 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Daniels v. S.R.M. Management Corp., 100 A.D.3d 440 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Grant v. United Pavers Co., Inc., 91 A.D.3d 499 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 10 James v. Perez, 95 A.D.3d 788 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Kang v. Martin Almanzar, 116 A.D.3d 540 (1st Dept. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Kendig v. Kendig, 115 A.D.3d 438 (1st Dept. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Kendig v. Kendig, 981 N.Y.S.2d 413 (1st Dept 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 PAGE(S) iii Linton v. Nawaz, 62 A.D.3d 434 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Nova .v Fontanez, 112 A.D.3d 435 (1st Dept. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Osborne v. Diaz, 104 A.D.3d 486 (1st Dept. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Parnell-Thomas v. Bath, 99 A.D.3d 485 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Perl v. Meher, 18 N.Y.3d 208 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Pommells v. Perez, 4 N.Y.3d 566 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Rampersaud v. Eljamali, 100 A.D.3d 508 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12 Rivera v. Fernandez & Ulloa Auto Group et. al., 123 A.D.3d 509 (1st Dept 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Santos v. Perez, 107 A.D.3d 572 (1st Dept. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Thompkins v. Ortiz, 95 A.D.3d 418 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Valentin v. Pomilla, 59 A.D.3d 184 (1st Dept 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Vargas v. Moses Taxi, Inc., 117 A.D.3d 560 (1st Dept. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Vaughan v. Leon, 94 A.D.3d 646 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8 Venegas v. Signh, 103 A.D.3d 562 (1st Dept. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 PAGE(S) iv Williams v. Tatham, 92 A.D.3d 472 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481 (1st Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Statutes NY Insurance Law § 5102(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1 PRELIMINARY STATEMENT This brief is respectfully submitted on behalf of the Plaintiff-Appellant, Kyreese Franklin, seeking to reverse those portions of the Decision and Order of the Bronx Supreme Court, Hon. Fernando Tapia, J.S.C., dated May 8, 2014, which found that Plaintiff failed to raise a triable issue of fact on the issue of serious injury under No-Fault Law as to his left shoulder. QUESTIONS PRESENTED Did the lower court err in dismissing the Plaintiff-Appellant's claim for injury to his left shoulder by requiring that his treating orthopedic surgeon directly address the defendant doctors' opinions of degeneration where there was no prior history or complaints of damage to the left shoulder and the treating orthopedic surgeon opined that the injury to the left shoulder was proximately caused by the accident? The lower court answered this question in the negative holding that the Plaintiff-Appellant's treating orthopedic surgeon's opinion Affirmation did not expressly rebut the Defendant-Respondents' doctors' opinions that the injuries were pre-existing. It is respectfully submitted that the lower court erred in dismissing Plaintiff-Appellant's claim for injury to his left shoulder. 2 STATEMENT OF FACTS The facts of this case are largely undisputed. On November 3, 2011 the Defendant-Respondent Carmen Rosa Gareyua, driving Defendant-Respondent Mensch Management Inc.'s vehicle, rear ended the Plaintiff's vehicle causing him to sustain serious injuries. (R 61-197) 1 . Summary judgment was granted in favor of Plaintiff on the issue of liability. As a result of the accident, the Plaintiff sustained tears to his left shoulder, requiring surgery, as well as injuries to his neck and back. Defendants-Respondents moved for Summary Judgment on the grounds that Plaintiff Kyreese Franklin did not sustain a serious injury under NY Insurance Law § 5102(d). (R 18-24). Addressing the Plaintiff-Appellant's left shoulder injury, the Defendants-Respondents' examining doctor, Dr. Alan Crystal, M.D., refers to x-ray and MRI reports of the left shoulder interpreted by the Plaintiff-Appellant's treating radiologist, Jack Lyons, M.D., without an indication that Dr. Crystal reviewed the films himself (R 47, 48). While acknowledging the shoulder pathology found by Dr. Lang, Dr. Crystal does not indicate that Dr. Lang noted any findings of degeneration. Instead, he opines that Dr. Lang did not specifically note any 1 The Record on Appeal is referenced by an "R" followed by the page or pages in the Record. 3 relation of the observed pathology to trauma. In addition, Dr. Crystal reviews the operative findings of the Plaintiff- Appellant's treating orthopedic surgeon, Dr. Louis Rose (R 48). He acknowledges the operative findings which included a torn rotator cuff, and shoulder impingement, while ignoring other findings from the report such as a torn glenoid labrum. After reviewing Dr. Rose's operative report and records, Dr. Crystal does not find any indication in the report or records which show the observed damage to the left shoulder was degenerative or pre-existing. Id. Rather than point to any portion of the medical records showing pre-existing degeneration, injury, treatment or complaint, Dr. Crystal simply state a conclusory opinion that: The operative findings are compatible with chronic impingement, not acute trauma. The impingement has zero causation to the MVA of 11/03/2011. It is my firm opinion and conclusion that there is no basis to causally relate the alleged injuries of record of the left shoulder to the the accident of 11/03/2011. Saliently, Dr. Crystal does not refer to the Defendant-Respondent's examining radiologist, Dr. Tantleff's findings to attempt to support his conclusory opinion. (R 48). Similarly, Defendants-Respondents' examining radiologist, Dr. Tantleff does not point to any portion of the radiology reports, treatment or operative records which indicate any pre-existing injuries, treatment or complaints (R 45). His 4 findings differ from the treating radiologist's and treating orthopedic surgeon's findings in that he fails to identify the torn glenoid labrum, rotator cuff tear and impingement of the left shoulder (R 58-60). Dr. Tantleff specifically opined that “[t]here is no evidence of any definable or significant degenerative tendinosis,” yet gives a conclusory opinion that “[t]here are no findings causally related to the date of the incident of 11/3/11.” (R 45). Plaintiff-Appellant responded to these conclusory opinions in his opposition to the motion which included an affirmation from his treating orthopedic surgeon, Dr. Louis C. Rose, M.D. (R 188-196). In his affirmation, Dr. Rose, explained that he first saw the Plaintiff on November 4, 2011, one day after the accident. (R 189). The Plaintiff advised him that he was forcefully rear ended, that he had no past orthopedic surgeries and was active before the accident (R 189). Dr. Rose sent him for a MRI evaluation of his left shoulder, which he personally reviewed and which revealed malalignment of the AC joint with impingement upon the underlying supraspinatus muscle, conjoined tendon tenosynovitis/bursitis, subscapularis tendonopathy and bursitis (R 190). consistent with Plaintiff's treating radiologist (R 58). Following review of these diagnostic films, arthroscopic surgery was performed by Dr. Rose on the Plaintiff-Appellant's left shoulder. During this procedure, Dr. Rose visualized the nature and extent of Plaintiff-Appellant's 5 shoulder injuries, including internal derangement of the left shoulder requiring acromioplasty, partial tear of the glenoid labrum requiring debridement of the glenoid labrum, and hypertrophic synovium. (R 59-60, R 188-196). Additionally he took intraoperative photos which were attached to his affirmation with notations demonstrating those traumatically induced injuries he visualized during the Plaintiff's procedure. (R 191). He noted that the labrum was present (R 191), in direct contradiction to Defendants' radiologist's claim that it was non-existent, and concluded that these operative findings, which correlated with the clinical symptoms, signs and complaints and his review of the imaging studies, were causally related to the accident. (R 191). Based upon his treatment of the Plaintiff for a period of two years, his personal review of the shoulder MRI and the operative findings that he visualized during surgery, it was his opinion to a reasonable degree of medical certainty that these injuries were caused by the rear end automobile accident and are causally related to the rear end impact (R 193, 194). In an order dated May 13, 2014 and entered on June 17, 2014, The Honorable Fernando Tapia, J.S.C., partially granted Defendant's motion for summary judgment solely as it related to Plaintiff-Appellant's left shoulder injury. (R 9-15). A copy of the Decision and Order, with Notice of Entry, was served by our office on July 17, 2014. Notice of appeal was filed on July 18, 2014. 6 The Decision and Order was predicated on the lower court's conclusion that the Plaintiff-Appellant’s treating physician's affirmation had to explicitly rebut Defendants' experts' claims that the Plaintiff's left shoulder condition was preexisting, citing Kendig v. Kendig, 115 A.D.3d 438 (1 st Dept 2014) and Rampersaud v. Eljamali, 100 A.D.3d 508 (1 st Dept 2012). It is respectfully submitted that in dismissing the Plaintiff Respondent's left shoulder injury claim on causation, the lower court misapplied the controlling case law by utilizing the rare exceptions to the stated rule which holds that a Plaintiff's treating physician's opinion that an injury was caused by the accident constitutes “a different, yet equally plausible cause, namely, the accident” and thus creates an issue of fact without requiring it to expressly rebut a Defendant's expert's opinion that the injury was pre-existing. ARGUMENT A PLAINTIFF 'S DOCTOR IS NOT REQUIRED TO EXPLICITLY REBUT A DEFENDANT'S DOCTOR'S CLAIM OF DEGENERATION A plaintiff's physician’s affirmation which causally relates the injuries to the accident raises a question of fact on the issue on causation and need not explicitly address opinions of degeneration in a defendant's physician’s affirmation. See Perl v. Meher, 18 N.Y.3d 208 (2011); Vaughan v. Leon, 94 A.D.3d 646 (1 st Dept 2012); Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481 (1 st Dept 2011). As explained by 7 Justice Manzanet-Daniels in her concurring opinion in Calcano v. Rodriquez, 103 A.D.3d 490, 491-2 (2013), the Court of Appeals in Perl v. Meher, 18 N.Y.3d 208 (2011), established an “unequivocal holding” that such an affirmation from plaintiff's physician raises “a triable issue of fact as to causation.” Calcano v. Rodriquez, 103 A.D.3d at 492 (1 st Dept 2013). In a long line of cases over the past few years, this Court has made it clear that the Court's role in determining serious injury threshold questions based on a defendant's claim of lack of causation is fact finding and not fact determination. The Perl Court, for example, made this clear by finding that “plaintiff's contrary evidence, while hardly powerful, was sufficient to raise an issue of fact.“ Perl v. Meher, 18 N.Y.3d at 219-9 (2011); see also, Grant v. United Pavers Co., Inc., 91 A.D.3d 499, 500 (1 st Dept. 2012). Distinguishing the issue of causation under the Court of Appeals' holdings in the three cases decided in Pommells v. Perez, 4 N.Y.3d 566 (2005), this Court rejected the argument that a plaintiff's treating doctor's opinion must directly rebut a defendant's doctor's opinion on causation. See Venegas v. Signh, 103 A.D.3d 562, 563 (1 st Dept 2013) ; Vaughan v. Leon et al., 94 A.D.3d 646, 648-9 (1 st Dept 2012); Linton v. Nawaz, 62 A.D.3d 434, 439-440 (2009). The Appellate Court, in Vaughan, found that “although Dr. Khakhar did not expressly reject defendant's expert's conclusion that the injuries were degenerative in origin, by attributing the 8 injuries to a different, yet equally plausible cause, plaintiff raised a triable issue of fact....” Vaughan v. Leon et al., 94 A.D.3d at 648-9 (1 st Dept 2012)(citations omitted). There are a myriad of elements which a treating physician may use to arrive at his or her opinion that the injuries were caused by the accident, establishing an “equally plausible cause,” independent of a contrary opinion by a defendant's physician. This equally plausible cause constitutes an autonomous question of fact which must be determined by the trier of the fact, precluding summary judgment. Williams v. Tatham, 92 A.D.3d 472, 473 (1 st Dept. 2012); Camacho v. Espinoza, 94 A.D.3d 674, 674 (1 st Dept. 2012). In Camacho, this Court affirmed the lower court's denial of summary judgment on causation, finding that “[a]lthough plaintiff's physicians did not expressly address the conclusion of defendants' expert that the cervical injuries where degenerative in origin, the physician attributed plaintiff's injuries to a different, yet equally plausible cause, namely, the accident....” Camacho v. Espinoza, 94 A.D.3d 674, 674 (1 st Dept. 2012)(citations omitted)(emphasis added). Likewise in Biascochea v. Boves, 93 A.D.3d 548 (1 st Dept. 2012), this Court reversed the grant of summary judgment, holding that “[a]lthough Dr. Rose did not expressly address defendants' expert's conclusion that the injuries were degenerative in origin, he relied on the same MRI report as Dr. Berkowitz, and 9 attributed plaintiff's injuries to a 'different, yet altogether equally plausible, cause'..., thus raising a triable issue of fact with regard to her left knee injuries....” Id. at 546 (citations omitted)(emphasis added). This Department affirmed, under similar facts, the lower court's denial of summary judgment in Caines v. Diakite, 105 A.D.3d 404 (1 st Dept. 2013). Dr. Lubliner, Plaintiff's orthopedist in that case opined the “subject accident was the competent cause for injuries to plaintiff's left knee and the medial meniscal tear.” Id. at 404. This Court found such opinion to be “a different, yet equally plausible cause” sufficient to raise an issue of triable fact. Id. at 404-406. Indeed, even a chiropractor's opinion that the injury was caused by the accident has been held to create an issue of fact on causation as against a defendant's radiologist's opinion that the injury is degenerative. Williams v. Tatham, 92 A.D.3d 472, 473 (1 st Dept. 2012). Because conflicting opinions create a question of fact, it is not necessary for the plaintiff's physician's opinion to directly address or rebut the defendant's physician's opinion. Grant v. United Pavers Co., Inc., 91 A.D.3d 499 (1 st Dept. 2012). Although plaintiff's physicians did not expressly address defendants' expert's conclusion that the injuries were degenerative in origin, by relying on the same MRI report as defendants' expert, and attributing plaintiff's injuries to a different, yet equally plausible cause, plaintiffs raised a triable issue of fact.... Although '[a] factfinder could of course reject this opinion'..., we cannot say on this record, as a matter of law, that plaintiff's injuries had no causal 10 connection to the accident. Id. (citations omitted)(emphasis added). The mere expression of an opinion that the injuries were caused by the accident by plaintiff's treating physician is, in fact, addressing and rebutting a defendant's physician's affirmation that the injuries were degenerative and not caused by the accident. Araro v. American Medical Response of New York, Inc., 99 A.D.3d 563 (1 st Dept. 2012). The plaintiff's doctors' opinions that the injuries were caused by the accident, in Araro, sufficiently addressed the defense expert's finding of degeneration for the Appellate Division to affirm the lower court's denial of summary judgment. Id. at 564. This Court employed the same reasoning to reinstate a serious injury claim in Thompkins v. Ortiz, 95 A.D.3d 418 (1 st Dept. 2012), holding that “The orthopedist adequately addressed the causation issue by opining that the injuries were caused by the accident....” Id. at 419 (citations omitted). Plaintiff's treating physician in the present case, Dr. Rose, explains that he first saw the Plaintiff for the subject motor vehicle accident on November 4, 2011, one day after the accident. (R 189). The Plaintiff advised him that he was forcefully rear ended, that he had no past orthopedic surgeries and was active before the accident (R 189). Dr. Rose sent him for a MRI evaluation of his left shoulder, which he personally reviewed and which revealed malalignment of the 11 AC joint with impingement upon the underlying supraspinatus muscle, conjoined tendon tenosynovitis/bursitis and subscapularis tendonopathy and bursitis (R 190). Following review of these diagnostic films, arthroscopic surgery was performed by Dr. Rose on the Plaintiff's left shoulder. During this procedure, he directly visualized the extent of Plaintiff's shoulder injuries, including internal derangement of the left shoulder and partial tear of the glenoid labrum requiring debridement of the glenoid labrum, and hypertrophic synovium with acromioplasty. Additionally he took intraoperative photos of what he visualized and addressed, attached to his affirmation, which he marked up further demonstrating those traumatically induced injuries he visualized during the Plaintiff's procedure. (R 191). He noted that the labrum was present (R 191), directly contradicting Defendants' radiologists' opinion that the operative findings were causally related to the accident and that the clinical symptoms, signs and complaints correlate with both the imaging and operative findings. ( R 191). Based upon his treatment of the Plaintiff for a period of two years, his own independent review of the shoulder MRI and the operative findings that he visualized during surgery, it was his opinion to a reasonable degree of medical certainty that these injuries were caused by the rear end automobile accident and are causally related to the rear end impact (R 193). 12 In cases where treating doctors have used virtually identical criteria to opine that the injury was caused by the accident, this Department has consistently held that the treating doctor's opinion requires that the matter be decided by the trier of the fact. Kang v. Martin Almanzar, 116 A.D.3d 540, 541 (1 st Dept.2014); Vargas v. Moses Taxi, Inc., 117 A.D.3d 560, 560 (1 st Dept. 2014); Osborne v. Diaz, 104 A.D.3d 486, 487 (1 st Dept. 2013); Santos v. Perez, 107 A.D.3d 572, 573 (1 st Dept. 2013); Parnell-Thomas v. Bath, 99 A.D.3d 485, 486 (1 st Dept. 2012); James v. Perez, 95 A.D.3d 788 (1 st Dept. 2012); Daniels v. S.R.M. Management Corp., 100 A.D.3d 440, 440-441 (1 st Dept. 2012). In contrast, the lower court's finding that Dr. Rose's Affirmation “never addressed the Defendants' prima facie showing that plaintiff's left shoulder condition was degenerative or pre-existing,” (R 9-15), was based on those rare exceptions where plaintiff's treating physician's opinion is insufficient for other reasons. In Kendig, relied upon by the lower court, for example, the plaintiff's doctor classified the injury as “an exacerbation” of a pre-existing condition but did not provide the extent of such exacerbation. Kendig v. Kendig, 981 N.Y.S.2d at 413 (1 st Dept 2014). In Rampersaud v. Eljamali 100 A.D.3d 508, 509 (1 st Dept 2012), also relied upon by the lower court, the chiropractor's report and other records submitted by the plaintiff were in inadmissible form. The general exception to the rule is when the plaintiff's physician's own 13 finding or medical records show a pre-existing condition. Angeles v. Versace, Inc., 124 A.D.3d 544 (1 st Dept 2015) (plaintiff's own medical records showed pre- existing degeneration unexplained by expert); Alvarez v. NYLL Management LTD., 120 A.D.3d 1043 (1 st Dept 2014) (plaintiff's medical records revealed pre- existing degeneration and normal range of motion); Rivera v. Fernandez & Ulloa Auto Group et. al., 123 A.D.3d 509 (1 st Dept 2014) (plaintiff's own medical records conclude findings were degenerative, Physician opines injury was only “secondary” to car accident); Nova .v Fontanez, 112 A.D.3d 435, 435-36 (1 st Dept. 2013) (plaintiff's doctors report acknowledges a pre-existing degeneration); Valentin v. Pomilla, 59 A.D.3d 184, 186 (1 st Dept 2009) (Plaintiff's doctors reported degenerative condition and failed to explain how he came to his conclusion that it was related to the accident). Neither Dr. Rose's affirmation nor the plaintiff's medical records in the present case indicate any pre-existing condition. In addition, he meticulously laid out how he came to his opinion that the injuries were the result of the accident. Accordingly, none of these narrow exceptions apply to the plaintiff in the present case as Plaintiff's medical history was devoid of prior injury and his treating orthopedist not only confirmed the MRI findings, but presented and described photographs taken during Plaintiffs surgery, conclusively establishing his surgical findings and causally relating what he saw to the forceful rear end impact. 14 (R 193, 194). Here, it is respectfully submitted that the lower court's finding that Dr. Rose's Affirmation “never addressed the defendants' prima facie showing that plaintiff's left shoulder condition was degenerative or pre-existing,” incorrectly required that Dr. Rose explicitly rebut the defendant's doctor's claim that the injury was degenerative by applying the exception rather than the rule. For the foregoing reasons, it is respectfully submitted that Plaintiff substantially and properly rebutted Defendants-Appellants' contentions of preexisting degeneration by positing an equally plausible cause for the Plaintiff's injuries, namely the subject accident, raising a question of fact and mandating denial of summary judgment in its entirety. Since there was ample evidence in the original motion, rebutting Defendants' motion for summary judgment, Defendants' motion should have been denied in its entirety. CONCLUSION Upon the foregoing, it is respectfully requested that this Honorable Court reverse the lower court's Decision and Order that Plaintiff failed to raise a question of fact as to his left shoulder injury and for such other and further relief as this Court may deem just and proper. 15 Dated: April 9, 2015 Respectfully submitted, ______________________________ JOHN E. BONETA McMAHON & McCARTHY Attorneys for Plaintiff-Appellant /s/ John E. Boneta 16 PRINTING SPECIFICATION STATEMENT This computer generated brief was prepared using a proportionally spaced typeface. Name of typeface: Times New Roman Point Size: 14 Line Spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum is 3,096. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------------------------------)( KYREESE L. FRANKLIN, Plaintiff(s), - against- CARMEN ROSA GAREYUA and MENSCH MANAGEMENT INC. , Defendant( s). ---------------------------------------------------------------)( Index#: 20308/20 12E PRE-ARGUMENT STATEMENT Appellant, KYREESE L. FRANKLIN by his attorneys, McMAHON & McCARTHY, respectfully submits this Pre-Argument Statement pursuant to 22 NYCRR §600.17 of the rules of the Appellate Division, First Department: 1. Title a/Action: The full title ofthe action is : Kyreese Franklin v. Carmen Rosa Garevua and Mensch Management Inc. 2. Full Names a,{ Original Parties and Any Changes in the Parties: The parties to the case in the court be low are as named in paragraph 1. 3. Name, Address and Telephone Number of Appellant's Counsel: MATTI-JEW .1. MCMAHON, ESQ. McMahon & McCarthy Attom eys for Appellant-Plaintiff 25 East 233rd St Bronx, NY 10470 (7 18) 324-8900 4. Name, Address and Telephone Number ufRespondent's Counsel: ADAM WARN ER, ESQ. Baker, McEvoy Monissey & Moskovits, PC Page 3 Attorneys for Respondents-Defendants Carmen Rosa Gareyua s/h/a Carmen Rosa Gareyua and Mensch Management Inc One MetroTech Center Brooklyn, NY 11201 212-857-8230 Fax 2 12-857-8238 5. Court and County From Which Appeal is Taken: This appeal is taken from each and every part of the Decision and Order of Fernando Tapia, J.S.C. dated May 13,2014, entered by the Clerk of the Supreme Court, Bronx County on or about June 17, 2014 (attached as Exhibit "I") and specifica lly the pmtion that found P1aintifffailed to raise a triable issue offact as to the causation of the injuries to his left shoulder. A copy of the decision and order with notice of entry is annexed hereto as Exhibit "1" . 6. Related Actions: T here are no related actions . 7. Nature and O~ject ofthe Cause ofAction: This is an action for personal injury arising out of a motor vehicle accident where Defendant's vehicle rear ended Plaintiffs vehicle on or about November 3, 201 1. Summary judgment has already been granted to P laintiff regarding liability . As a result of the accident i is alleged Plaintiff injured his leJl shoulder, requiring surgery, as wel l as his neck and back. 8. Result Reached in the Court Below: By Decision and Order of the Honorable Femando Tapia, J.S.C. Defendants/Respondents' motion for SLm1mruy judgment regru·ding threshold Page4 was granted only as to Plaintiffs left shoulder injury on the basis that Plaintiff/Appellant. in opposition to Defendants'/Respondcnts' motion, failed to raise a triable issue of fact as to the causation of the injuries to his left shoulder. 9. Grounds .for Seeking Reversal, Annulment or Modification: Plaintiff/Appellant contends that in issuing its Decision and Order dated May 13, 2014, entered by the Clerk of the Supreme Court, Bronx County on or about June 17. 2014, the Court erred: (a) by granting Defendants/Respondents' motion as to the causation of Plaintiffs left shoulder injuries as Plaintiff's doctor was not required to explicitly rebut a defendant's doctor's claims of degeneration and Plaintiff's doctor fully, substantially and properly posited an equally plausible cause fo r the Plaintiffs injuries, namely the subject accident; and (b) such other and further issues as may become apparent upon review of the records on appeal. Dated: Bronx, New York .July 18,2014 TO: J -IN E. B T cMAHON & McCARTHY Attorneys for PLAINTIFF(s) 25 East 233rd Street Bronx, New York I 04 70 (718) 324-8900 (718) 324-2614 (fax) Page 5 CLERK SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX 851 Grand Concourse Bronx, NY 1 0453 Baker, McEvoy Morrissey & Moskovits, PC Attorneys for Defendants Carmen Rosa Gareyua s/h/a Carmen Rosa Gareyua and Mensch Management Inc One MetroTech Center Brooklyn, NY 11201 212-857~8230 Fax 212-857-8238 Page 6