Causation defense fails when ROM diminishment not explainedMarch 19, 2022

Shah v Nowakowski, 2022 NY Slip Op 01952 (4th Dept. 2022)

“Contrary to defendant’s contention, her own submissions in support of the motion raise triable issues of fact whether the motor vehicle accident caused plaintiff’s alleged injuries (see Carter v Patterson, 197 AD3d 857, 858 [4th Dept 2021]; Schaubroeck v Moriarty, 162 AD3d 1608, 1609 [4th Dept 2018]). Defendant submitted the report of her expert physician, who concluded that plaintiff’s injuries were either preexisting or degenerative in nature. The report of defendant’s expert, however, “does not establish that plaintiff’s condition is the result of a preexisting [or] degenerative [condition] inasmuch as it fails to account for evidence that plaintiff had no complaints of pain prior to the accident” (Carter, 197 AD3d at 858 [internal quotation marks omitted]). Further, defendant’s expert failed to address plaintiff’s medical records, which noted that plaintiff’s range of motion had further decreased by 25% after the accident”

I feel like we almost have to look to the Fourth Department for common sense solutions to our auto negligence legal problems…