Court of Appeals upholds dismissal of a 5102(d) case (4-3)October 25, 2018

Rosa v Delacruz, 2018 NY Slip Op 07040 (2018)

“The order of the Appellate Division should be affirmed, with costs.

In support of their motions for summary judgment, defendants relied on independent physician reports finding that plaintiff had a normal range of motion six months following the accident, with no permanent effects, and on the results of a shoulder MRI performed six weeks after the accident by plaintiff’s radiologist, who reported that plaintiff’s rotator cuff tendons were intact and there was no MRI evidence of a tear. Plaintiff’s responding medical submissions were inadequate to raise a triable issue of fact because they failed to acknowledge, much less explain or contradict, the radiologist’s finding. Instead, plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident and anterior labrum/rotator cuff tears that he observed (and repaired) during surgery nearly two years after the accident. ”

This case involves Ins Law 5102(d) on the issue of causation.  Defendant relied on a normal no-fault IME and the Plaintiff’s own radiologist averring that it is a normal and anything wrong was degenerative in nature.  Plaintiff opposed with an affidavit from a surgeon that  performed the surgery and saw tears that were traumatic in origin and related to the accident.  The surgeon also diagnosed Plaintiff with a tear early on during the treatment.

I am assuming the affirmance is based upon the reasons that the Appellate Division laid out – the failure of the treating orthopedist to rule out degeneration.


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