Opinion
2012-12-20
Daniel BARHAK, Plaintiff–Appellant, v. L. ALMANZAR–CESPEDES, Defendant–Respondent.
Elana Sharara, Great Neck, for appellant. Backer, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for respondent.
Elana Sharara, Great Neck, for appellant. Backer, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for respondent.
ANDRIAS, J.P., SAXE, MOSKOWITZ, FREEDMAN, ABDUS–SALAAM, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 20, 2011, which, insofar as appealed from, granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, the motion denied to the extent it sought dismissal of plaintiff's claim that he suffered “permanent consequential” and “significant limitation” injuries to his cervical spine, and otherwise affirmed, without costs.
Plaintiff alleges that as a result of a rear-end motor vehicle accident that occurred in August 2009, he sustained permanent injuries to his cervical spine, lumbar spine, left elbow, and left shoulder. Defendant met his prima facie burden by submitting, among other things, the affirmation of an orthopedic surgeon who found upon recent examination that each body part exhibited full range of motion ( see Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 920 N.Y.S.2d 24 [1st Dept. 2011];DeLeon v. Ross, 44 A.D.3d 545, 844 N.Y.S.2d 36 [1st Dept. 2007] ). As to plaintiff's claimed cervical spine injury, defendant proffered the affirmation of a radiologist who, upon reviewing an MRI taken after the accident, opined that plaintiff had extensive degenerative disc disease and desiccation which predated the accident and the disc herniations seen at multiple levels had a degenerative etiology ( see Porter v. Bajana, 82 A.D.3d 488, 918 N.Y.S.2d 414 [1st Dept. 2011] ).
Plaintiff raised an issue of fact as to his claim of serious injury to his cervical spine. He submitted the affirmations of a radiologist who found that the MRI films reveal a bulging disc and herniations at multiple levels, and his treating neurologist who conducted an EMG/NCV test showing radiculopathy, measured continuing limitations in range of motion, and opined, based on the medical evidence and absence of prior injuries, that plaintiff's cervical spine injuries were caused by the accident ( see Serbia v. Mudge, 95 A.D.3d 786, 787, 945 N.Y.S.2d 296 [1st Dept. 2012];Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [1st Dept. 2011] ). Plaintiff also adequately addressed his gap in treatment through his treating doctor's explanation that treatment had stopped because plaintiff reached “maximum medical improvement” ( Ayala v. Cruz, 95 A.D.3d 699, 700, 945 N.Y.S.2d 240 [1st Dept. 2012] )
Plaintiff, however, submitted no objective medical evidence of any lumbar spine injury ( see Williams v. Horman, 95 A.D.3d 650, 651, 944 N.Y.S.2d 135 [1st Dept. 2012] ), failed to adduce any evidence in support of his claimed left shoulder injury, and proffered no evidence of continuing limitations in the left elbow ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350–351, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002];Martinez v. Goldmag Hacking Corp., 95 A.D.3d 682, 683, 944 N.Y.S.2d 555 [1st Dept. 2012] ).
Supreme Court properly dismissed plaintiff's 90/180–day claim in light of his deposition testimony that he lost no time from work, and the allegation in his verified bill of particulars that he was not confined to bed or home after the accident ( see Mitrotti v. Elia, 91 A.D.3d 449, 450, 936 N.Y.S.2d 42 [1st Dept. 2012] ). Plaintiff failed to submit evidence sufficient to raise an issue of fact as to the 90/180–day claim.