

Francis v Nelson (2016 NY Slip Op 04445)





Francis v Nelson


2016 NY Slip Op 04445


Decided on June 9, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 9, 2016

Mazzarelli, J.P., Andrias, Richter, Manzanet-Daniels, Kahn, JJ.


1243

[*1]Sandra Francis,	21739/11E Plaintiff-Respondent,
vRegina Nelson, et al., Defendants-Appellants.


Katz & Associates, Brooklyn (Anthony M. Grisanti of counsel), for appellants.
Mark B. Rubin, P.C., Bronx (Michael A. Rubin of counsel), for respondent.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about March 27, 2015, which, insofar as appealed from, upon reargument, denied defendants' motion for summary judgment dismissing the claims of serious injury resulting in "significant" or "permanent consequential limitation of use" within the meaning of 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.
The court properly granted reargument based on plaintiff's contention that the unaffirmed CT scan reports prepared by her radiologist could be considered, because they had been referenced and relied upon by defendant's medical expert in diagnosing preexisting degenerative changes in plaintiff's cervical and lumbar spine (see Amamedi v Archibala, 70 AD3d 449 [1st Dept 2010], lv denied 17 NY3d 713 [2010]). However, the reports do not avail plaintiff. Although they found herniated and bulging discs, they also found "degenerative changes," including osteophyte formations at multiple levels, and plaintiff's treating chiropractor, while acknowledging the findings of degeneration, did not adequately address those findings or explain why degeneration was not the cause of the claimed spinal injuries (see Acosta v Traore, 136 AD3d 533 [1st Dept 2016]).
Defendants made a prima facie showing that all of plaintiff's other claimed injuries had resolved and that her claimed knee injury preexisted the accident. In opposition, plaintiff did not provide any medical evidence to rebut defendants' showing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 9, 2016
CLERK


