Opinion
2012-10-25
Basil BAILEY, et al., Plaintiffs–Appellants, v. Shariful M.D. ISLAM, et al., Defendants–Respondents.
Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for appellants. Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for respondents.
Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for appellants. Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for respondents.
MAZZARELLI, J.P., SWEENY, RENWICK, RICHTER, ROMÁN, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about April 4, 2012, which granted defendants' motion for summary judgment dismissing the complaint for failure to satisfy the serious injury threshold of Insurance Law § 5102(d), unanimously modified, on the law, to the extent of denying the motion with respect to plaintiffs' claim of serious injury under the “fracture” category of Insurance Law § 5102(d), and otherwise affirmed, without costs.
The conflicting expert opinions as to the existence of a fracture in the injured plaintiff's cervical spine precludes summary dismissal. While defendants established absence of a fracture by submitting the affirmed report of their radiologist, who found no evidence of post-traumatic changes, plaintiff raised a triable issue of fact by submitting the affirmation of his radiologist averring that he found subchondral fractures at the C3 and C4 levels of the cervical spine upon review of the MRI film ( see Spagnoli–Scheman v. Bellew, 91 A.D.3d 414, 935 N.Y.S.2d 510 [1st Dept.2012];Torain v. Bah, 78 A.D.3d 588, 588–589, 913 N.Y.S.2d 27 [1st Dept.2010] ).
Defendants met their prima facie burden of establishing their entitlement to judgment as a matter of law with respect to plaintiff's claim of serious injury to his right shoulder, by submitting the reports of their orthopedist and neurologist finding full range of motion, resolved strains, and absence of orthopedicand neurological disability ( see Diakite v. Soderstrom, 89 A.D.3d 607, 933 N.Y.S.2d 34 [1st Dept.2011];Thompson v. Abbasi, 15 A.D.3d 95, 96, 788 N.Y.S.2d 48 [1st Dept.2005] ). Plaintiff did not submit any evidence of limitations, contemporaneous or recent, so as to defeat summary judgment as to this claim ( see Winters v. Cruz, 90 A.D.3d 412, 933 N.Y.S.2d 551 [1st Dept.2011] ).
Defendants also met their burden with respect to plaintiffs' 90/180–day claim by submitting plaintiff's deposition testimony showing that, although the injuries prevented him from returning to work, they did not otherwise affect his usual pre-accident activities. That plaintiff missed more than 90 days of work is not determinative of a 90/180–day injury ( see Uddin v. Cooper, 32 A.D.3d 270, 271, 820 N.Y.S.2d 44 [1st Dept.2006],lv. denied8 N.Y.3d 808, 834 N.Y.S.2d 89, 865 N.E.2d 1256 [2007] ), and plaintiff has offered no evidence showing that he was restricted from performing substantially all of the material acts that constituted his usual and customary daily activities for 90 days during the 180 days following the accident ( see Fernandez v. Niamou, 65 A.D.3d 935, 885 N.Y.S.2d 486 [1st Dept.2009] ).
We note, however, that if the trier of fact determines that a fracture injury was sustained, it may award damages for all injuries causally related to the accident ( see Linton v. Nawaz, 14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010];Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549–550, 898 N.Y.S.2d 110 [1st Dept.2010] ).