Summary
In Boateng v Ye Yiyan (119 AD3d 424 [1st Dept 2014]), the Appellate Division, First Department, held that the defendants "fail[ed] to meet their initial burden on the 90/180-day claim" where "[d]efendants' physicians' examinations took place well after the relevant 180-day period, and defendants submitted no other evidence disproving plaintiff's claim that she was disabled and unable to return to her work... for six months following the accident due to a medically determined injury caused by the accident."
Summary of this case from Argiro v. Andrew's Taxi Express Corp.Opinion
2014-07-3
Irene BOATENG, Plaintiff–Appellant, v. YE YIYAN, et al., Defendants–Respondents.
Lawrence S. Hyman, Kew Gardens, for appellant. Cheven, Keely & Hatzis, Esqs., New York (William B. Stock of counsel), for Ye Yiyan and Cheng Ping, respondents.
Lawrence S. Hyman, Kew Gardens, for appellant. Cheven, Keely & Hatzis, Esqs., New York (William B. Stock of counsel), for Ye Yiyan and Cheng Ping, respondents.
Marjorie E. Bornes, Brooklyn, for Juan Dume, respondent.
SWEENY, J.P., ACOSTA, SAXE, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered March 26, 2012, which granted the motions of defendant Juan Dume and defendants Ye Yiyan and Chen Ping for summary judgment dismissing the complaint on the threshold issue of serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, the motions denied as to plaintiff's serious injury claims, the matter remanded for further proceedings, including disposition of that branch of defendant Dume's motion that sought summary judgment on the issue of his liability, and otherwise affirmed, without costs.
Preliminarily, plaintiff waived her argument that defendant Dume was not entitled to move for summary judgment because he had not filed an answer, by joining in his application for leave to interpose a late answer. Her acquiescence in his request avoided the possibility that his alternate request, that the court dismiss the complaint against him as abandoned (CPLR 3215 [c] ), would be granted.
Defendants made a prima facie showing that plaintiff did not suffer a serious injury involving a permanent consequential or significant limitation in use of her cervical spine or any other claimed body part by submitting expert medical reports finding normal ranges of motion in those body parts ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002];Vega v. MTA Bus Co., 96 A.D.3d 506, 946 N.Y.S.2d 162 [1st Dept.2012] ). In opposition, plaintiff raised a triable issue of fact as to whether she sustained a permanent consequential or significant limitation of use of any body part. The affirmed report of plaintiff's physician was admissible, even though relying in part on unsworn contemporaneous MRI reports and medical evaluations ( see Byong Yol Yi v. Canela, 70 A.D.3d 584, 895 N.Y.S.2d 397 [1st Dept.2010];Rivera v. Super Star Leasing, Inc., 57 A.D.3d 288, 288, 868 N.Y.S.2d 665 [1st Dept.2008] ). The MRI reports and evaluations may be considered for the further reason that they were reviewed by defendants' experts in preparing their reports ( see Johnson v. KS Transp., Inc., 115 A.D.3d 425, 982 N.Y.S.2d 15 [1st Dept.2014] ).
Defendants failed to make a prima facie showing that plaintiff did not sustain a medically determined injury of a nonpermanent nature that prevented her from performing substantially all of her customary and daily activities for 90 of the 180 days immediately following the accident ( see Delgado v. Papert Tr., Inc., 93 A.D.3d 457, 939 N.Y.S.2d 457 [1st Dept.2012] ). Defendants' physicians' examinations took place well after the relevant 180–day period, and defendants submitted no other evidence disproving plaintiff's claim that she was disabled and unable to return to her work as a hotel chamber maid for six months following the accident due to a medically determined injury caused by the accident ( see Jeffers v. Style Tr. Inc., 99 A.D.3d 576, 952 N.Y.S.2d 541 [1st Dept.2012];Quinones v. Ksieniewicz, 80 A.D.3d 506, 506–507, 915 N.Y.S.2d 70 [1st Dept.2011] ). In light of defendants' failure to meet their initial burden on the 90/180–day claim, plaintiff's proof need not be reviewed ( see Jeffers at 577–578, 952 N.Y.S.2d 541). If plaintiff ultimately prevails on her 90/180–day claim, she will be entitled to recover damages for all her injuries proximately caused by the accident ( Martinez v. Goldmag Hacking Corp., 95 A.D.3d 682, 944 N.Y.S.2d 555 [1st Dept.2012];Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 898 N.Y.S.2d 110 [1st Dept.2010] ).
Because the motion court denied, as moot, the branch of defendant Dume's motion for summary judgment dismissing the complaint and all cross claims on the ground that he was not liable for the underlying vehicular collision here, the matter is remanded for disposition of that branch of his motion ( see Rivera v. Berrios Trans Serv. Inc., 64 A.D.3d 416, 882 N.Y.S.2d 114 [1st Dept.2009] ).