Suboptimal effort?November 25, 2019

Morales v Cabral, 2019 NY Slip Op 08516 (1st Dept. 2019)

” Defendant Morales established prima facie that plaintiff did not sustain a serious injury to her cervical spine, lumbar spine or left shoulder in the June 2014 automobile accident through the reports of physicians who examined plaintiff and found no indications of limitations in use of the subject body parts. Although one examiner measured limitations in motion, she opined that these were subjective and unrelated to any objective evidence of injury (see Macdelinne F. v Jimenez, 126 AD3d 549, 551 [1st Dept 2015]). Morales also submitted radiologists’ reports finding either no injury or preexisting conditions and an emergency room medical expert’s finding that plaintiff’s post-accident complaints and treatment were inconsistent with her claims (see De La Rosa v Okwan, 146 AD3d 644 [1st Dept 2017], lv denied 29 NY3d 908 [2017]). Morales further relied on records of plaintiff’s primary care physician, which reflect no contemporaneous complaints by plaintiff and show that plaintiff had a normal range of motion a year after the accident (see Perl v Meher, 18 NY3d 208, 217-218 [2011]). The physician’s records also show that plaintiff ceased treating at that time (see Pommells v Perez, 4 NY3d 566, 574 [2005]).”

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