Yun H. Ni, Appellant,
Sheilah A. O'Brien et al., Respondents.
Calendar Date: November 18, 2019
A. Becher, Albany, for appellant.
Bailey, Johnson & Peck, PC, Albany (William C. Firth of
counsel), for respondents.
Before: Garry, P.J., Lynch, Mulvey, Aarons and Colangelo, JJ.
from an order of the Supreme Court (Platkin, J.), entered
November 27, 2018 in Albany County, which granted
defendants' motion for summary judgment dismissing the
2015, plaintiff was rear-ended by a car driven by defendant
Sheilah A. O'Brien. Plaintiff commenced this action
seeking damages for his resulting injuries, which allegedly
included a herniated disc and a severe lumbar sprain and
strain. In his verified bill of particulars, plaintiff
alleged that his injuries met the requirements of
"serious injury" in accord with three of the
categories established within Insurance Law § 5102 (d).
Upon completion of discovery, defendants moved for summary
judgment dismissing the complaint, which plaintiff opposed.
Supreme Court granted defendants' motion and dismissed
the complaint. Plaintiff appeals.
asserts that defendants failed to make a prima facie showing
that his injuries were not causally related to the 2015
accident. On a motion for summary judgment in this type of
action, the defendant bears "the initial 'burden of
establishing by competent medical evidence that [the]
plaintiff did not sustain a serious injury caused by the
accident'" (Howard v Espinosa, 70 A.D.3d
1091, 1092 , quoting Haddadnia v Seville, 29
A.D.3d 1211, 1211 ; see generally Pommells v
Perez, 4 N.Y.3d 566, 573 ). If this burden is met,
the plaintiff must then provide "competent medical
evidence based upon objective medical findings and tests to
support his [or her] claim of serious injury and to connect
the condition to the accident" (Wolff v
Schweitzer, 56 A.D.3d 859, 861  [internal
quotation marks and citation omitted]; see Vargas v
Tomorrow Travel & Tour, Inc., 74 A.D.3d 1626, 1627
asserted that plaintiff had a preexisting condition caused by
an earlier car accident, which had occurred in 2010 and
resulted in a diagnosis of both lumbar and cervical strains.
Upon their motion, defendants provided plaintiff's bill
of particulars, medical records and deposition testimony.
Plaintiff's bill of particulars claimed that the subject
2015 accident resulted in "[t]rauma to the lumbar spine,
cervical spine and head" with disc protrusions, which
caused discomfort, pain and a decrease in plaintiff's
range of motion, and had "aggravated, enhanced and made
symptomatic plaintiff's preexisting and
non-symptomatic" cervical and lumbar disc disease. The
medical records presented by defendants established that, in
2010, plaintiff suffered cervical and lumbar strains in a
similar motor vehicle accident. These medical records also
stated that, prior to the subject accident, in 2014,
plaintiff had reported to his primary care physician that he
sometimes experienced pain in his shoulder and back.
also relied upon a medical examination conducted by physician
Harvey Seigel, who examined plaintiff and reviewed his
medical records, including those related to the 2010
accident. He concluded that plaintiff's cervical
strain/sprain had resolved and that the lumbar sprain/strain
is "superimposed on pre-existing degenerative disc
disease," and that there was no causally-related back
disability. In his deposition testimony, plaintiff
acknowledged the 2010 accident and the medical treatment he
received thereafter. We agree with Supreme Court that this
expert report, together with plaintiff's medical records
and deposition testimony, provided an objective, competent
medical basis for finding on a prima facie basis that
plaintiff's injury was not causally related to the 2015
accident, thus shifting the burden to plaintiff "to
offer objective medical evidence distinguishing
plaintiff's preexisting condition from the injuries
claimed to have been caused by each accident"
(Falkner v Hand, 61 A.D.3d 1153, 1154 ;
see Cole v Roberts-Bonville, 99 A.D.3d 1145, 1147
did not meet this burden. Upon this appeal, plaintiff
requests that we reverse Supreme Court's order based upon
a review of his testimony regarding his work activities prior
to the subject accident and his disability from that
employment thereafter. It is, however, well established that
medical evidence is required. Here, plaintiff's medical
evidence failed to address the 2010 accident or his
preexisting medical conditions. He submitted, as pertinent
here, three reports provided by medical examiners.
The first report was prepared by physician Paul Jones, who
examined plaintiff in 2015 and 2017. On both occasions, Jones
diagnosed lumbar injuries, and concluded that the injuries
were causally related to the 2015 accident. However, each of
these reports noted that no medical records were reviewed,
that there were no preexisting injuries affecting
plaintiff's recovery, and that plaintiff denied existing
medical problems. A third examination was conducted by
physician Adam Soyer, who reviewed some of plaintiff's
medical records as part of the examination. Soyer concluded
that the injury and accident were causally related, but found
no orthopedic disability. This expert similarly noted that
plaintiff denied any prior motor vehicle injuries. Thus,
plaintiff's reports failed to address the 2010 accident,
and Jones' reports did not include a review of
plaintiff's medical records. Plaintiff therefore failed
to provide "objective medical evidence relevant to
distinguishing his preexisting condition" from the
injuries allegedly sustained in the 2015 accident (Thomas
v Ku, 112 A.D.3d 1200, 1201 ; see Shea v
Ives, 137 A.D.3d 137 A.D.3d 1404, 1405 ).
Accordingly, we find that Supreme Court properly granted
defendant's motion for summary judgment dismissing the
complaint. The lack of sufficient proof on causation is
dispositive of all three of the serious injury categories
asserted by plaintiff (see Thomas v Ku, 112 A.D.3d
Mulvey, Aarons and Colangelo, JJ., concur.
that the order is ...