'Rosa': 'Causally Related' Is Insufficient To Establish Serious Injury
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.
October 24, 2019 at 11:45 AM
4 minute read
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.
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