Bobbio v Amboy Bus Co. Inc., 2016 NY Slip Op 07101 (1st Dept. 2016)
(1) “[defendant] found no objective neurological disability or permanency and full range of motion (see Birch v 31 N. Blvd., Inc., 139 AD3d 580 [1st Dept 2016]; Mayo v Kim, 135 AD3d 624 [1st Dept 2016]). Their orthopedist’s finding of minor limitations in range of motion does not defeat this showing (see Stephanie N. v Davis, 126 AD3d 502, 502 [1st Dept 2015]). Defendants also relied on plaintiff’s deposition testimony that she had been found to be disabled as a result of a neck condition more than six years before the subject accident, thereby shifting the burden to plaintiff to demonstrate a causal connection between the accident and her claimed cervical injury.”
(2) “Her orthopedist acknowledged that an MRI of the cervical spine taken four years before the accident showed a preexisting condition, but he provided no objective basis, only the history supplied by plaintiff, for his opinion that the accident exacerbated the preexisting condition (see Campbell v Fischetti, 126 AD3d 472, 473 [1st Dept 2015]). Plaintiff offered no evidence of any injuries different from her preexisting condition, and her orthopedist failed to explain why her preexisting conditions were ruled out as the cause of her current alleged injuries”
On causation (and we are assuming the only issue is cervical injury), a prima facie showing was satisfied through a disability caused because of a neck injury. The failure to adduce that the injuries were different as a result of the new injury was fatal to plaintiff’s case.
