Key Takeaway
Hernandez v Marcano: renewal restored spine claims, but the unpleaded shoulder claim failed. Read the medical-record distinctions and Jason's note.
This article is part of our ongoing causation coverage, with 51 published articles analyzing causation issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Hernandez v Marcano, 161 AD3d 676 (1st Dept 2018), produced different results for different claimed injuries. The spine claims survived after the appellate court granted renewal; the shoulder claim did not. That procedural history matters when using the case to discuss missing early treatment records.
Legal Update (September 2026): Chapter 58 of 2026, Part EE §§ 1 and 4 removed the 90/180-day serious-injury category for actions and proceedings commenced on or after May 26, 2026. This historical case predates that amendment.
Renewal restored an omitted affirmation
The plaintiff sought renewal because a treating physician’s affirmation, identified in her opposition papers, had inadvertently been left out of the papers filed with the court. The First Department accepted the law-office-failure explanation and found no prejudice to the defendants. Upon renewal, it denied their motions as to the cervical and lumbar spine claims.
The physician described continuing motion restrictions, positive objective tests and a causal connection to the accident. The plaintiff also supplied affirmed reports of spinal MRIs performed shortly after the collision. It was the appellate renewal ruling that restored the spine claims.
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
The shoulder claim had separate defects
The left-shoulder injury was not pleaded in the bill of particulars and appeared for the first time in opposition. The defense therefore did not have to address it to make its initial showing. The court also considered normal shoulder findings and hospital records showing no shoulder treatment after the accident; the plaintiff supplied no contemporaneous shoulder-treatment evidence in response.
Those combined defects do not create a rule that every delayed complaint is incurable. Perl v Meher distinguishes missing causal evidence from the timing of numerical measurements. Hernandez also rejected the historical 90/180-day claim on the evidence presented; returning to work was discussed in that separate analysis.
Jason’s original 2018 commentary
Jason’s June 2018 comment refers to the opinion’s discussion of the unpleaded shoulder injury and missing contemporaneous shoulder treatment. His recollection of the Fealy litigation is preserved as commentary, not independently verified here. It is not a rule that any treatment delay defeats a claim.
The bolded was my argument over 10 years ago in Stephen Fealy v. State Farm. Well, I knew I was right then and I am correct now,
Connect to the Encyclopedia
- Preexisting injuries and causation: topic hub
- Kester: delayed shoulder complaints without an automatic cutoff
- Black: reasons required for a claimed aggravation
- Valentin: degeneration in the plaintiff’s own medical records
- Torres and Campanile: when the causation burden shifts
- Mnatcakanova: a causal conclusion that did not answer degeneration
- Fealy: early knee complaints in a separate no-fault motion
- Grant: supported competing MRI-based explanations
For review of a particular claim, contact the firm.
Last reviewed: September 2026. Original publication date retained.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Causation in New York Personal Injury & No-Fault Law
Causation — proving that the defendant's negligence or the accident caused the plaintiff's injuries — is an essential element of every personal injury and no-fault claim. New York courts distinguish between proximate cause, intervening causes, and pre-existing conditions that may have been aggravated by an accident. The legal standards for establishing causation through medical evidence and the defenses available to challenge causal connection are analyzed in depth across these articles.
51 published articles in Causation
Keep Reading
More Causation Analysis
Collateral Estoppel?
Explore collateral estoppel: why default judgments don't preclude later suits & when courts can depart from other departments' rulings.
Sep 28, 2020
New York Personal Injury Law: Proving Causation in Accident Cases
Learn how to prove causation in NY personal injury cases. Expert analysis of Parisien v Allstate case and causation challenges. Call 516-750-0595.
Aug 10, 2019
Pre-Existing Injuries in New York Personal Injury Cases: What You Need to Know
Learn how pre-existing conditions affect NY personal injury cases. Expert legal guidance for Long Island accidents. Call 516-750-0595 for free consultation.
Mar 20, 2019
Failure to review actual images insufficient to defeat causation MSJ
Court grants summary judgment where plaintiff's expert failed to review actual ultrasound images, only relying on reports in medical malpractice causation dispute.
Aug 10, 2017
Biomechanical Engineer allowed to testify
Landmark 2014 Vargas v Sabri case allows biomechanical engineers to testify on motor vehicle accident causation without medical credentials in New York courts.
Mar 18, 2014
Causation defense rebuffed – notice the subtleties of this case
McDuffie v Rodriguez: acute injury evidence raised a causation issue; the opinion did not hold that defense experts failed to review MRI films.
Apr 28, 2010Was this article helpful?
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a causation matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
