Santos v. Manga , 152 A.D.3d 416 ( 2017 )

Santos v Manga (2017 NY Slip Op 05513)

Santos v Manga

2017 NY Slip Op 05513

Decided on July 6, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 6, 2017
Tom, J.P., Richter, Manzanet-Daniels, Mazzarelli, Gische, JJ.

4417 301917/13

[*1]Willi F. Santos, et al., Plaintiffs, Candida Garcia Mota, Plaintiff-Respondent,

v

Benjamin A. Manga, et al., Defendants-Appellants.

Marjorie E. Bornes, Brooklyn, for appellants.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered May 12, 2016, which, to the extent appealed from as limited by the brief, denied defendants' motion for summary judgment dismissing plaintiff Candida Garcia Mota's claims of serious injuries in the "permanent consequential" and "significant" limitation of use categories of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, the motion granted, and plaintiff Mota's claims dismissed in their entirety. The Clerk is directed to enter judgment accordingly.

Defendants made a prima facie showing that the 71-year-old plaintiff had preexisting degenerative conditions in her right shoulder, lumbar spine and cervical spine, which were reflected in her own MRI reports (see Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd 24 NY3d 1191 [2015]). Since plaintiff submitted no medical evidence to refute defendants' initial showing as to those body parts, defendants' motion to dismiss those claims should have been granted (see Green v Domino's Pizza, LLC, 140 AD3d 546 [1st Dept 2016]).

As to plaintiff's claimed right knee injury, defendants' radiologist opined that the MRI films showed preexisting degenerative joint disease, and their orthopedist found full range of motion and opined that the post-operative diagnoses noted by plaintiff's orthopedic surgeon in his operative report were all consistent with an arthritic knee, not trauma. In opposition, plaintiff submitted only the affirmed report of a doctor who examined her the day after the accident, which was insufficient to demonstrate "significant" or "permanent consequential" limitations in range of motion. Plaintiff also failed to submit admissible medical evidence to rebut the opinions of defendants' experts that she had an arthritic knee (see Rickert v Diaz, 112 AD3d 451 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 6, 2017

CLERK