Thompson v. Bronx Merchant Funding Services, LLC, et al., __ A.D.3rd __ (1st Dep’t November 27, 2018)

The Appellate Division, First Department, agreed with the IAS court’s conclusion that plaintiff’s medical evidence did not sufficiently establish a connection between plaintiff’s injuries (including right-knee replacement surgery) and the subject accident, and it affirmed an Order granting summary judgment to defendants, dismissing the Complaint on the basis that plaintiff did not sustain a serious injury in accordance with Insurance Law section 5102(d).

Readers of Newswire will recall that the accident occurred when the Access-a-Ride bus that plaintiff was riding in as a passenger was struck in a low-impact collision. (See “Injuries possibly severe, but not shown to have causal link to auto accident; plaintiff failed to meet serious injury threshold and Court grants defendants summary judgment”, Newswire 7/20/2017.) Plaintiff alleged that she suffered injuries to her cervical spine, lumbar spine, right shoulder and right knee as a result of the accident.

In its unanimous Decision, the Appellate Division held that defendants demonstrated prima facie through expert medical reports that plaintiff’s alleged injuries had resolved and were preexisting degenerative conditions. The conclusory opinions of plaintiff’s orthopedic surgeon and other physicians; the unaffirmed MRI reports; and her deposition testimony failed to raise a triable issue of fact. Plaintiff’s admissible MRI reports and radiology findings showed disc desiccation, osteophytes, and cystic structures consistent with degenerative conditions.

Abrams Gorelick associate Jay Gunsher briefed the Response of the defendants/respondents, the vehicle’s owner and operator.