Kyreese L. Franklin, Appellant,v.Carmen Rosa Gareyua, et al., Respondents.BriefN.Y.March 21, 2017To Be Argued By: JOHN E. BONETA Bronx County Clerk's Index No. 20308/2012E APPELLATE DIVISION-FIRST DEPARTMENT .... KYREESE L. FRANKLIN, Plaintiff-Appellant, -against- CARMEN ROSA 0AREYUA and MENSCH MANAGEMENT INC., Defendants-Respondents. REPLY BRIEF FOR PLAINTIFF-APPELLANT JOHN E. BONETA McMAHON & McCARTHY 25 East 233rd Street Bronx, New York 10470 (718) 324-8900 atyj eb@optonline. net Attorneys for Plaintjff-Appellant REPRODUCED ON RECYCLED PAPER i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ii TABLE OF AUTHORITIES PAGE(S) Cases Alvarez v. NYLL Management LTD., 120 A.D.3d 1043 (1st Dept 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 Angeles v. Versace, Inc., 124 A.D.3d 544 (1st Dept 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 Malloy v. Matute, 79 A.D.3d 584 (1st Dept 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Nova .v Fontanez, 112 A.D.3d 435 (1st Dept. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Ocean v. Hossain, 127 A.D.3d 402 (1st Dept 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Perl v. Meher, 18 N.Y.3d 208 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Rivera v. Fernandez & Ulloa Auto Group et. al., 123 A.D.3d 509 (1st Dept 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 Rosa v. Mejia, 95 A.D.3d 402 (1st Dept 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Valentin v. Pomilla, 59 A.D.3d 184 (1st Dept 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Vaughan v. Leon, 94 A.D.3d 646 (1st Dept 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481 (1st Dept 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5 1 PRELIMINARY STATEMENT This reply brief is respectfully submitted on behalf of the Plaintiff-Appellant Kyreese Franklin, in further support of reversing 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 injuries. ARGUMENT DEFENDANTS-RESPONDENTS CONFUSE “DEGENERATION” WITH “PREEXISTING” BY RELYING ONLY ON CASES WHERE THERE WAS AFFIRMATIVE PROOF OF PRE-EXISTING INJURY TO SUGGEST THAT DEGENERATION FITS WITHIN THE SAME NARROW EXCEPTION CARVED OUT FOR PRE-EXISTING INJURIES A Plaintiff's physician who causally relates the Plaintiff's 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 (1st Dept 2012); Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481 (1st Dept 2011). The central purpose of a summary judgment motion, is to determine whether there are factual issues to be resolved at trial. Vaughan v. Leon, 94 A.D.3d 646, 649 (1st Dept 2012). There is no specific catechism a Plaintiff's doctor must recite to raise a 2 question of fact. The question is whether there were sufficient details presented to raise a question of fact. Id. At 649. The flaw in Defendants-Respondents' logic is readily apparent. Defendants- Respondents cite those same cases already distinguished by Plaintiff-Appellant without showing that the narrow exception actually applies to the present facts. The general exception to the rule is when the Plaintiff's physician's own findings or medical records show a preexisting condition. Angeles v. Versace, Inc., 124 A.D.3d 544 (1st Dept 2015); Alvarez v. NYLL Management LTD., 120 A.D.3d 1043 (1st Dept 2014); Rivera v. Fernandez & Ulloa Auto Group et. al., 123 A.D.3d 509 (1st Dept 2014); Nova .v Fontanez, 112 A.D.3d 435, 435-36 (1st Dept. 2013); Valentin v. Pomilla, 59 A.D.3d 184, 186 (1st Dept 2009). To avoid the requirement of showing Plaintiff's injuries were preexisting, one they cannot prove, Defendants-Respondents exchange “preexisting” with “degeneration.” The two are not, in fact, synonymous. A degenerative condition may be traumatically induced/advanced and is not, unequivocally, preexisting. Those cases cited by Defendants-Respondents to support this tactical substitution are distinguishable because in those cases there was affirmative proof of preexisting injury to the same affected areas within Plaintiffs' own medical records. In Alvarez v. NYLL Management LTD., 120 A.D.3d 1043, 1044 (1st Dept 2014) the Plaintiff's own records revealed preexisting degeneration, Plaintiff 3 acknowledged a pre-accident history of arthritis and the Plaintiff exhibited normal ranges of motion. Angeles v. Versace, Inc., 124 A.D.3d 544 (1st Dept 2015) cites both Alvarez v. NYLL Management LTD., 120 A.D.3d 1043 (1st Dept 2014) and Rosa v. Mejia, 95 A.D.3d 402 (1st Dept 2012) for this same proposition. In Rivera v. Fernandez & Ulloa Auto Group et. al., 123 A.D.3d 509 (1st Dept 2014) the Plaintiff's own medical records conclude the findings were preexisting and chronic, with Plaintiff's physician concluding the injury was only “secondary” to the car accident. Here, undeniably, the record is devoid of any evidence of a preexisting injury by the Plaintiff-Respondent to his left shoulder. Neither Dr. Rose's affirmation nor Plaintiff's medical records indicate any preexisting condition to his left shoulder and Dr. Rose meticulously laid out how he came to his opinion that the injuries were a result of the accident. The Plaintiff's testimony was consistent with the medical records, confirming he never injured his left shoulder before the accident. (R 151, 152). Regarding Plaintiff-Appellant's mechanism of injury, Defendants-Respondents omit those portions of his testimony where he explains just how he sustained his left shoulder injuries in the accident. He testified that he was seat belted across the left shoulder, that his body went forward and back as a result of the rear end impact with his hands pressed against the steering wheel at impact, and this forward motion, while pushed into the steering wheel, caused his left shoulder injuries (R 96, 100, 140). 4 In Ocean v. Hossain, 127 A.D.3d 402, (1st Dept 2015) cited by Defendants- Respondents, this Court found a question of fact precluding summary judgment where the Plaintiff's physician 's conclusion regarding causation were founded upon his personal observation, the lack of previous complaints and the acute onset of pain directly after the accident. Despite Plaintiff's radiologists' own MRI reports finding degenerative conditions in both knees, this Court held a question of fact existed regarding causation. Similarly here, the Plaintiff-Appellant's treating physician relied upon his personal care and treatment of Plaintiff, Plaintiff's reported acute onset of pain, and his lack of reported prior injuries in forming his conclusion. Rather than bolster their argument, Ocean supports and proves that “preexisting” and “degeneration” are not synonymous. Here, Plaintiff- Respondent's reading radiologist gave no indication as to the origin of the “mild arthrosis” or whether it was traumatically induced/advanced due to the accident. (R 58). In Malloy v. Matute, 79 A.D.3d 584 (1st Dept 2010) Defendants' motion for summary judgment was denied where Defendants' experts ascribed the Plaintiff's right knee injuries to degenerative causes and Plaintiff's doctor was unanimous in concluding that the subject accident was the sole competent cause of the Plaintiff's knee injuries, based upon individual medical exams, MRI results and the necessity of surgery to repair a tear in the medial meniscus. That Plaintiff, as here, had no 5 reported preexisting injuries and had surgery within months of the accident. Similarly, in Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, (1st Dept 2011) summary judgment was denied where the Plaintiff's physician concluded the symptoms were causally related to the accident, because Plaintiff was asymptomatic before the accident. Although that Plaintiff's expert did not directly rebut Defendants' claims that the injuries were degenerative and/or congenital, he did attribute the injuries to a different, yet altogether equally plausible cause, namely the accident, thereby rejecting the defense expert's opinion and affording his opinion equal weight. Plaintiff-Appellant's treating physician even contradicted the defendants-respondents' radiologist's claim that the labrum was congenitally missing by including images taken during his surgery showing the presence of same (R 193, 194). Defendants-Respondents attempts to surreptitiously swap “degeneration” with “preexisting” falters because all the cases they cite in support of summary judgment presented affirmative proof of preexisting injuries. The narrow exception, therefore, clearly does not apply to the Plaintiff in the present case. Plaintiff's medical history was devoid of prior injury as demonstrated in both his medical records and testimony and his treating orthopedist not only confirmed the MRI findings, but reviewed them and presented and described photographs he took during Plaintiffs surgery, conclusively establishing his surgical findings and 6 causally relating what he saw to the forceful rear end impact. (R 193, 194). CONCLUSION Upon the foregoing appellate brief and reply, it is respectfully requested that this Honorable Court reverse the lower Court's Decision and Order that Plaintiff- Respondent 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. Dated: August 20, 2015 Respectfully submitted, ______________________________ JOHN E. BONETA McMAHON & McCARTHY Attorneys for Plaintiff-Appellant /s/ John E. Boneta 7 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 1,182.