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Second Department recognizes degeneration as a basis to move for summary judgmentJuly 25, 2018

Cavitolo v Broser, 2018 NY Slip Op 05442 (2d Dept. 2018)

“In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff’s expert failed to address the findings of the defendant’s examining radiologist that the magnetic resonance imaging of the plaintiff’s left shoulder, taken shortly after the accident, revealed only pre-existing degenerative conditions (see Franklin v Gareyua, 136 AD3d 464, 465-466, affd 29 NY3d 925, 926; Chery v Jones,62 AD3d 742, 742-743; Ciordia v Luchian, 54 AD3d 708, 708-709).”

Franklin is a First Department case.  Chery and Ciordia are Second Department  Pre-Pehrl cases from 2008 and 2009.  I sense the “affd” is what caused the Second Department to rejoin the other three departments in requiring an affidavit to meaningfully refer or rebut the  degeneration defense.

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