COURTNEY TAYLOR, plf-ap, v. LORENZO DELGADO def-res

4868. COURTNEY TAYLOR, plf-ap, v. LORENZO DELGADO def-res — Block O'Toole & Murphy, New York (David L. Scher of counsel), for ap — Saretsky Katz & Dranoff, L.L.P., New York (Allen L. Sheridan of counsel), for res — Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about July 5, 2016, which granted defendants' motion for summary judgment dismissing the complaint alleging serious injury within the meaning of Insurance Law §5102(d), unanimously modified, on the law, to deny the motion as to the claim of permanent consequential and significant limitations of use of the lumbar spine and the 90/180-day claim, and otherwise affirmed, without costs.

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4868. COURTNEY TAYLOR, plf-ap, v. LORENZO DELGADO def-res — Block O’Toole & Murphy, New York (David L. Scher of counsel), for ap — Saretsky Katz & Dranoff, L.L.P., New York (Allen L. Sheridan of counsel), for res — Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about July 5, 2016, which granted defendants’ motion for summary judgment dismissing the complaint alleging serious injury within the meaning of Insurance Law §5102(d), unanimously modified, on the law, to deny the motion as to the claim of permanent consequential and significant limitations of use of the lumbar spine and the 90/180-day claim, and otherwise affirmed, without costs.

Defendants established that plaintiff did not suffer a serious injury to her lumbar spine or right knee as a result of the motor vehicle accident at issue by submitting the affirmed reports of a radiologist and orthopedist. The radiologist opined that the MRI of the lumbar spine showed a herniation associated with underlying degenerative disc disease and that the MRI of the right knee revealed a tilted patella causing degeneration (see Lindo v. Brett, 149 AD3d 459 [1st Dept 2017]). The orthopedist opined that plaintiff’s lumbar spine surgery was due to her pre-existing spine condition, consistent with her age, weight and MRI findings, and was not caused by the subject accident, and that the knee condition also was unrelated to the accident (see Nicholas v. Cablevision Sys. Corp., 116 AD3d 567 [1st Dept 2014]). Defendants also submitted the MRI reports of plaintiff’s own radiologist, who also found evidence of degenerative disc disease in the lumbar spine and a lateral tilting patella, thus shifting the burden to plaintiff to address and explain the medical evidence of preexisting conditions (see Rivera v. Fernandez & Ulloa Auto Group, 123 AD3d 509 [1st Dept 2014], affd 25 NY3d 1222 [2015]).

COURTNEY TAYLOR, plf-ap, v. LORENZO DELGADO def-res

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