| Frenkel v Irby |
| 2008 NY Slip Op 50433(U) [18 Misc 3d 141(A)] |
| Decided on March 7, 2008 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Plaintiff appeals from an order of the Civil Court, Bronx County (Lizbeth Gonzalez, J.),
dated August 31, 2006, which granted defendants' motion for summary judgment dismissing the
complaint.
Per Curiam:
Order (Lizbeth Gonzalez, J.), dated August 31, 2006, affirmed, with $10 costs.
Defendants established prima facie entitlement to summary judgment on the threshold
serious injury issue (see Insurance Law §5102[d]) by offering the reports of
medical experts who, after examining plaintiff and reviewing medical records, opined that
plaintiff's injuries, if any, were from pre-existing or degenerative conditions and were not
traumatic in origin (see Mullings v Huntwork, 26 AD3d 214 [2006]). The only medical
evidence presented by plaintiff in opposition was the affirmed report of a doctor who first saw
plaintiff 15 months after the accident. In the absence of any contemporaneous quantitative
assessment of range of motion limitations or a detailed explanation for their omission, the
doctor's opinion based on his belated findings was too remote from the accident to be probative
as to causation (see Guadalupe v Blondie, 43 AD3d 669 [2007]; Lopez v
Simpson, 39 AD3d 420 [2007]). Plaintiff's doctor also failed to address the conclusion of
defendants' experts that plaintiff's headaches and visual complaints were caused by preexisting
conditions unrelated to the accident.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 7, 2008