Cynthia Moctezuma v. Luis Garcia, Index No. 20483/2016E (Sup. Ct. Bronx Cty. December 17, 2018)

Citing extensive orthopedic, neurological and radiological expert reports, a Bronx Court granted summary judgment to a defendant in a motor vehicle accident case, dismissing the Complaint pursuant to New York State Insurance Law section 5102(d).

Medical examinations reflected numerous ailments that allegedly bedeviled the plaintiff – knee replacement, neck pain, as well as pain in the shoulder, right wrist, lower back, and knee, and numbness to fingers and toes. What they did not show was causation or duration. Defendant’s orthopedist concluded that plaintiff had no causally related orthopedic disability, and limited range of motion were “as allowed by claimant and in the absence of clinical findings” they were subjective. He also found severe pre-existing degenerative left knee changes unrelated to the accident. Defendant’s neurologist concluded that plaintiff had no objective findings of a neurological injury or objective findings of cervical or lumbar radiculopathy or myelopathy. There was evidence of extensive degenerative disease with respect to the left knee. Finally, defendant’s radiologist found osteoarthritic changes, with moderate-sized joint effusion (common in such cases), but no evidence of any traumatic injury to the knee such as a fracture, traumatic bone marrow edema, meniscal or ligamentous tear. These experts showed prima facie that plaintiff’s alleged right shoulder, cervical and lumbar spine, and right wrist complaints were resolved and that alleged left knee injuries were unrelated to the accident.

Plaintiff’s opposition failed to raise an issue of fact. The focus became the left knee, for which plaintiff had had replacement surgery. However, plaintiff failed to present competent evidence of complaints of pain or medical treatment to her left knee contemporaneous with the accident. The MRI from a month after the accident showed arthritic conditions. Treatment on the knee did not begin until more than three months after the accident. Plaintiff’s surgeon’s report confirmed the existence of a pre-existing condition, but failed to explain why the current symptoms were not related to that pre-existing condition. Another treating physician concluded that left knee injuries and the surgery were caused by the accident, but provided no objective medical basis for this conclusion. Contemporaneous records from an examination following the accident made no mention of a claim for left knee injury. Reports purporting to add a significant limitation were unsworn, thus inadmissible.

Defendants also showed that plaintiff was not prevented from performing usual and customary activities for 90 of the 180 days following the accident. Plaintiff was confined to bed for two weeks after the accident. Another period of alleged confinement occurred after the 180-day period following the accident.

Abrams Gorelick associate Jay S. Gunsher briefed and argued the defendant’s motion.