The Court of Appeals affirmed the 1st Department decision of Alvarez v. NYLL Mgt, Ltd, a Supreme Bronx case in which defendants moved for Summary Judgement on the issue of threshold.
Essentially, the Court held that when a treating physician fails to explain findings of degeneration or pre-existing conditions (and fails to address these issues in his or her report), then plaintiff will fail to raise a triable issue of fact to defeat Summary Judgment.
In Alvarez, plaintiff had a history of arthritis, bone spurs, and other degenerative conditions (as detailed in Emergency Room history, treating physicians’ notes, etc). “…(T)he surgeon failed to address the detailed findings of pre-existing degenerative conditions by defendants’ experts, which were acknowledged in the reports of plaintiff’s own radiologists…Moreover, surgeon’s failure to address plaintiff’s history of arthritis…warrants summary judgment dismissing those serious injury claims.”
The Court also dismissed plaintiff’s 90/180 claim as plaintiff failed to plead such in her Bill of Particulars.
Essentially, we should alert treating physicians to address these issues in their affirmation in Opposition to Summary Judgement. Failure to do so could be fatal to our clients’ claims.