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Pre-existing injuries insufficientMarch 20, 2019

Dixon v Kone, 2019 NY Slip Op 02041 (1st Dept, 2019)

” Defendants submitted, among other things, plaintiff’s deposition testimony, acknowledging that he previously had fusion surgery in his cervical spine, and reports of their radiologist who, consistent with plaintiff’s own radiologists, found that MRIs and CT scans performed approximately seven years before the accident showed significant degenerative disc disease in his cervical and lumbar spine (see Rivera v Fernandez & Ulloa Auto Group, 123 AD3d 509 [1st Dept 2014], affd 25 NY3d 1222 [2015]; Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd24 NY3d 1191 [2015]). Defendants’ orthopedist and neurologist found no current symptoms related to the accident, but only symptoms related to the preexisting conditions, and their emergency medicine expert found no indication of traumatic injury in plaintiff’s hospital records from the day of the accident (see Moore-Brown v Sofi Hacking Corp., 151 AD3d 567 [1st Dept 2017]).

In opposition, plaintiff failed to raise a triable issue of fact. He submitted medical records, which also confirmed his preexisting conditions, and the report of a physician who examined him two years after the accident. Although the physician acknowledged plaintiff’s prior surgery, preexisting degenerative conditions, and continuing pre-accident treatment, he failed to explain why plaintiff’s alleged injuries were not caused by the preexisting conditions, or to provide any basis for finding an aggravation of those injuries”

Plaintiff’s expert was required here to look at current MRIs and opine that there was signs of trauma or that that dark spots in the MRI could be aggravated through the motor vehicle accident

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