Johnson v. Singh

Mar 17, 2011
Versions:82 A.D.3d 565
918 N.Y.2d 483

Defendants met their burden of establishing that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d). Defendants’ orthopedist and radiologist concluded that plaintiff’s injuries were preexisting and were not caused by the accident. Their conclusions regarding causation were supported by objective medical proof, namely MRIs and surgical reports indicating that plaintiff had degenerative conditions in her knees (compare Torres v Knight, 63 AD3d 450 [2009], with Rodriguez v Abdallah, 51 AD3d 590 [2008]).

Plaintiff failed to submit sufficient evidence to raise an issue of fact as to her alleged injuries. Her treating physician failed to address the findings of degenerative change by defendants’ radiologist and provided no support for his conclusion that plaintiff’s arthritis was exacerbated by the accident (see Depena v Sylla, 63 AD3d 504, 505 [2009], lv denied 13 NY3d 706 [2009]).

Plaintiff has also failed to raise an issue of fact concerning her inability to perform substantially all of her routine activities for at least 90 of the first 180 days following the accident. Plaintiff testified that she was confined to bed for only a week after the accident, and there is no competent medical evidence that she was unable to perform her usual and customary activities for the relevant time period (see Lopez v American United Transp., Inc., 66 AD3d 407 [2009]). Concur—Andrias, J.P., Saxe, Friedman, Moskowitz and Richter, JJ.