Kenneth E. Pitcoff and Andrea M. Alonso

In a case that is underutilized by the defense bar, Rosa v. DelaCruz, 32 N.Y.3d 1060 (2018), the Court of Appeals clearly stated that a purely conclusory assertion that an injury was causally related to an accident is legally insufficient to defeat a summary judgment motion based on threshold. Insurance Law §5102(d).

The defendants in Rosa submitted an MRI report by plaintiff's own radiologist, which found multiple degenerative cysts and no torn tendons shortly after the accident. Additionally, defendant submitted reports of two orthopedists shortly after the accident and two years later when plaintiff underwent arthroscopic surgery. Both found normal range of motion.

Plaintiff in opposition submitted a report of his orthopedic surgeon who opined the shoulder tears were causally related to the accident. Neither the radiologist nor the orthopedic surgeon addressed the finding of degeneration or explained why the tears were not caused by the pre-existing degenerative condition. The Court of Appeals held plaintiff failed to acknowledge, much less explain or contradict, the radiologist's finding. The plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident and anterior labrum/rotator cuff tear that he observed (and repaired) during surgery nearly two years after the accident.

It must be noted that Judge Eugene Fahey wrote a dissent in which Judge Jenny Rivera and Rowan Wilson concurred. The judges found that the doctor's opinion that the rotator cuff injury was causally related was sufficient. Additionally, the opinion of the orthopedist was based on a review of plaintiff's medical history and personal observations made by the doctor during the arthroscopic procedure. The conflicting expert opinions is a matter to be resolved the trier of fact the dissent concluded.

Since Rosa was handed down one year ago, the lower courts have consistently followed it. Vargas v. Howledger, 2019 W.L. 978478 (Sup. Ct., New York County, 2019); Song v. Riadh, 2019 W.L. 2472423 (Sup. Ct., New York County 2019); Rodriguez v. Mamoun, 2019 W.L. 3973876 (Sup. Ct., New York County 2019); Livingston v. Aidara, 2019 W.L. 3238484 (Sup. Ct., New York County 2019). In many cases, the courts have granted partial summary judgment on some injuries but not on others.

In Roazzi v. What's Next Taxi, 2019 WL. 199771 (Sup. Ct., New York County 2019), Justice Adam Silvera, citing Rosa, granted summary judgment dismissing the claims for cervical spine injuries and meniscus tears. The court denied the motion with respect to the lumbar spine stating "plaintiff's doctor acknowledges degenerative disease in plaintiff's lumbar spine and opines that the instant accident exacerbated plaintiff's pain. Thus, an issue of fact has been raised as to plaintiff's lumbar spine and defendants' motion for summary judgment is denied as to the lumbar spine."

In some instances, there is a complete failure of plaintiff to even address the degeneration issue at all. Such was the case in Ramclan-Garvin v. Gill, 2019 W.L. 2405011 (Sup. Ct., Queens County 2019). There, plaintiff's expert never once addressed the issue of causation in his treatment reports. Although defendant's doctor did conclude plaintiff had suffered lumbar and cervical sprains as a result of the accident, the injuries were found to be healed. Silence on the issue of degenerative injuries is insufficient to defeat a motion for summary judgment.

Mere allegations of exacerbation are also insufficient to raise any questions of fact sufficient to defeat summary judgment. In Ramos v. Baez, 2019 W.L. 1030250 (Sup. Ct., New York County 2019) the plaintiff's treating doctors merely stated that the injuries had been exacerbated and that they were causally related to the underlying accident. Justice Silvera held that absent a proper explanation of the exacerbation and causality of the injuries to the accident, no issue of material fact was raised precluding summary judgment.

In sum, the rule of Rosa and its progeny as interpreted by the trial courts is that mere medical pronouncement that injuries are causally related to the accident is not enough to create an issue of fact to defeat summary judgment. Additionally, any mention of degenerative issues must be specifically addressed by the plaintiff and explained medically. Silence is not golden and will not be taken by the courts as sufficient to create a question of fact. Plaintiffs ignore these rules at their peril and face dismissal for failure to establish a serious injury pursuant to Insurance Law §5102(d).

Andrea M. Alonso and Kenneth E. Pitcoff are partners in the firm of Morris Duffy Alonso & Faley.