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Proof of causationJune 3, 2018

Hernandez v Marcano, 2018 NY Slip Op 03816 (1st Dept. 2018)

However, in any event, defendants Marcano and Crescent Cab Corp.’s expert found full range of motion and absence of injury to the left shoulder, and defendants Alvarado and Cook submitted plaintiff’s hospital records showing that plaintiff sought no treatment for her shoulder after the accident, indicating that any shoulder condition was not causally related to the accident (see Lee v Rodriguez, 150 AD3d 481 [1st Dept 2017]).

In opposition, plaintiff raised an issue of fact as to her cervical and lumbar spine through her physician’s affirmed report, which found continuing range of motion limitations, positive results on objective tests for cervical and lumbar injury, and causally related these injuries to the accident (Moreira v Mahabir, 158 AD3d 518, 518-519 [1st Dept 2018]; Encarnacion v Castillo, 146 AD3d 600 [1st Dept 2017]; Santana v Tic-Tak Limo Corp., 106 AD3d 572 [1st Dept 2013]). Plaintiff also submitted affirmed reports of MRIs of her spine performed shortly after the accident.

To the extent plaintiff asserts a left shoulder injury, as noted, it was not pleaded in her bill of particulars, and, in any event, she submitted no evidence of contemporaneous treatment of the shoulder in the period following the accident, indicating a lack of any causal connection (see Rosa v Mejia, 95 AD3d 402 [1st Dept 2012]).

The bolded was my argument over 10 years ago in Stephen Fealy v. State Farm.  Well, I knew I was right then and I am correct now,

 

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