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Linton v. Gonzales

Supreme Court of New York, First Department

October 17, 2013

Josette Linton, Plaintiff-Respondent,
v.
Eduardo Gonzales, et al., Defendants-Appellants.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Marjorie E. Bornes of counsel), for appellants.

Taller & Wizman, P.C., Forest Hills (Regis A. Gallet of counsel), for respondent.

Acosta, J.P., Saxe, Renwick, DeGrasse, Richter, JJ.

Order, Supreme Court, Bronx County (Faviola A. Soto, J.), entered on or about March 19, 2013, which denied defendants' motion for summary judgment dismissing the complaint alleging serious injuries under Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

Defendants made a prima facie showing of entitlement to judgment as a matter of law. They submitted the report of their expert orthopedic surgeon who, based on an examination of plaintiff and review of her medical records and MRI film, concluded that her shoulder symptoms were not caused by the subject accident but were secondary to degeneration, chronic impingement, and diabetes (McDuffie v Rodriguez, 72 A.D.3d 568 [1st Dept 2010]). The surgeon also stated that plaintiff's emergency room records and EMS reports noted no complaints of pain in the shoulder.

In opposition, plaintiff failed to provide any contemporaneous objective evidence of injuries to the left shoulder sufficient to raise an issue as to causation (see Perl v Meher, 18 N.Y.3d 208, 217-218 [2011]; Jean v Kabaya, 63 A.D.3d 509, 510 [1st Dept 2009]). Reports from her chiropractor and neurologist show only treatment to the spine, and make no mention of any left shoulder injuries. Although the affirmation and reports of plaintiff's orthopedic surgeon show range of motion limitations, positive impingement sign, and a tear in the left shoulder, he did not evaluate the left shoulder until about eight months after the accident, which is insufficient to raise an issue as to causation (Rosa v Mejia, 95 A.D.3d 402, 403-404 [1st Dept 2012]; Soho v Konate, 85 A.D.3d 522, 523 [1st Dept 2011]).

Given the lack of evidence of causation, plaintiff cannot establish her 90/180—day injury claim (see Barry v Arias, 94 A.D.3d 499, 500 [1st Dept 2012]).


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