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Appellate Victory for Andrea Ferrucci

November 16, 2015
By: Frank Scahill

Congratulations on the appellate victory for  Andrea Ferrucci  in an important victory on appeal in Walker v. Whitney (2015 NY Slip Op 07532) decided on October 15, 2015 by the Appellate Division, First Department. Here, the plaintiff in Bronx County claimed injuries to the left shoulder, including an impingement syndrome and partial thickness tearing of the anterior labrum. The plaintiff underwent arthroscopic surgery for decompression and repair of the labral tear. This plaintiff also alleged disc herniations of the cervical spine at C4-C5 and C5-C6 and disc bulges of the lumbar spine at L4-L5. The plaintiff underwent nerve block injections and trigger point injections for the cervical and lumbar spine. The case was dismissed by the lower court on a serious injury, summary judgment motion.

On appeal, the Appellate Division sustained the dismissal noting, "The only admissible evidence is an affirmation from plaintiff's orthopedic surgeon, who last examined plaintiff shortly after the arthroscopic procedure. He indicated that following surgery, plaintiff had a "decreased range of motion in his left shoulder," but did not provide measurements of the actual ranges of motion or a normal value for comparison. He also did not provide evidentiary support for his conclusory statement that plaintiff's shoulder condition is related to the accident, nor did he address the opinions of defendants' experts that any shoulder injury was due to ongoing pathology and degenerative changes (see Paduani v. Rodriguez, 101 AD3d 470, 471 [1st Dept 2012]). Although the unaffirmed MRI report of plaintiff's radiologist, like that of defendant's expert radiologist, found "mild" hypertrophic changes of the AC joint, plaintiff's expert failed to address those findings and explain why they were not the cause of the injury (see Batista v. Porro, 110 AD3d 609 [1st Dept 2013]). We note too that the surgeon's statement did not address the conclusions by defendant's doctors that as of 2012, plaintiff had regained a full range of motion in his left shoulder, which is relevant to the claim of permanent injury. Here, plaintiff fails to meet the serious injury threshold" Walker v. Whitney, No. 15641, 2015 WL 5972104 (N.Y. App. Div. Oct. 15, 2015).

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