Key Takeaway
Second Department clarifies that degenerative findings can support summary judgment dismissal when plaintiffs fail to adequately rebut pre-existing condition evidence.
The landscape of New York’s no-fault insurance law continues to evolve, particularly regarding how courts handle cases where pre-existing degenerative conditions complicate injury claims. Under Insurance Law § 5102(d), defendants often argue that a plaintiff’s injuries are merely pre-existing degenerative conditions rather than trauma-related injuries from the accident. The success of this defense strategy has varied across New York’s appellate departments, creating important precedential differences that practitioners must navigate.
In personal injury litigation, the burden shifts once defendants present evidence of degenerative findings on diagnostic imaging. Plaintiffs must then provide expert testimony that meaningfully addresses and rebuts these findings. The Second Department’s recent decision in Cavitolo v Broser demonstrates how courts evaluate whether plaintiffs have met this burden, particularly when their own medical records may work against them.
Jason Tenenbaum’s Analysis:
Cavitolo v Broser, 2018 NY Slip Op 05442 (2d Dept. 2018)
“In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff’s expert failed to address the findings of the defendant’s examining radiologist that the magnetic resonance imaging of the plaintiff’s left shoulder, taken shortly after the accident, revealed only pre-existing degenerative conditions (see Franklin v Gareyua, 136 AD3d 464, 465-466, affd 29 NY3d 925, 926; _Chery v Jones,_62 AD3d 742, 742-743; Ciordia v Luchian, 54 AD3d 708, 708-709).”
Franklin is a First Department case. Chery and Ciordia are Second Department Pre-Pehrl cases from 2008 and 2009. I sense the “affd” is what caused the Second Department to rejoin the other three departments in requiring an affidavit to meaningfully refer or rebut the degeneration defense.
Key Takeaway
The Second Department has aligned with other appellate departments in requiring plaintiffs to provide expert affidavits that specifically address and rebut evidence of pre-existing degenerative conditions. When plaintiffs fail to adequately respond to degeneration defenses, courts will grant summary judgment dismissal, emphasizing the critical importance of thorough expert testimony in personal injury cases.
Legal Update (February 2026): Since this 2018 decision, New York courts have continued to develop precedent regarding degenerative conditions and summary judgment motions under Insurance Law § 5102(d), and appellate departments may have issued additional rulings that clarify or modify the standards for expert testimony in rebutting degenerative findings. Practitioners should verify current Second Department precedent and review any intervening decisions that may have refined the burden-shifting analysis for cases involving pre-existing degenerative conditions.
