Thompson v. Bronx Merchant Funding Services, LLC, et al., 23050/2012E (Sup. Ct. Bronx Cty. July 6, 2017)

In an important decision granting summary judgment to defendants in an auto accident personal injury action, a Bronx court found that plaintiff’s medical evidence, though showing severe injuries, did not sufficiently establish their connection to the subject accident to raise a triable issue of fact in the face of evidence of degenerative changes. The court granted defendants’ motion for summary judgment dismissing the Complaint on the basis that plaintiff did not sustain a serious injury in accordance with Insurance Law section 5102(d).

Plaintiff alleged that she suffered injuries to her cervical spine, lumbar spine, right shoulder and right knee as a result of a 2012 motor vehicle accident. At the time of the accident she was riding as a passenger on an Access-a-Ride bus that was involved in a low-impact collision that caused no damage to the vehicle. Her extensive prior medical history came to light during discovery, including right knee arthroscopic surgery, left knee replacement surgery and degeneration of affected areas.

Defendants’ medical experts reported no evidence of recent trauma, but, rather, a full range of motion and the resolution of any alleged injuries. Based upon this evidence and deposition testimony that plaintiff was not disabled from working or performing activities of daily life, and did not suffer from residual or permanent disability, the defendants made their prima facie case.

Plaintiff opposed the motion with her own orthopedic surgeon’s and physiatrist’s reports, which indicated that total right knee replacement was necessary, and that plaintiff suffered permanent disabilities, as well as restricted range of motion in the cervical spine, lumbar spine, right shoulder and right knee. The court found this insufficient to defeat the motion.

The court wrote, “None of plaintiff’s doctors have addressed her prior history of degenerative and chronic conditions. Plaintiff does not even offer an affirmation from a radiologist who reviewed plaintiff’s MRI films. … The failure of the plaintiff’s doctors to address the findings of degenerative changes set forth by the defendants’ expert is fatal to the opposition.”

The decision illustrates how seriously courts take the statutory requirements of Insurance Law section 5102(d), and specifically how evidence of injury must be shown to have a relationship to the accident that is the subject of litigation. Here, in fact, given the result on the defendant’s motion, the court found that a separate motion for summary judgment on liability was academic and should be denied as moot.

Abrams Gorelick partner Dennis J. Monaco represented the defendant owner and defendant operator of the vehicle involved in the accident with the bus. He briefed and argued the motion.