Opinion
2011-11-10
Serena ETENG, et al., Plaintiffs–Appellants,v.DAJOS TRANSPORTATION, et al., Defendants–Respondents.
Law Offices of Stuart M. Kerner, P.C., Bronx (Stuart M. Kerner of counsel), for Serena Eteng, appellant.O'Connor, Redd, LLP, White Plains (John P. Gray of counsel), for Andre Allen, appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.
Law Offices of Stuart M. Kerner, P.C., Bronx (Stuart M. Kerner of counsel), for Serena Eteng, appellant.O'Connor, Redd, LLP, White Plains (John P. Gray of counsel), for Andre Allen, appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 26, 2010, which, to the extent appealed as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, the motion denied as to plaintiff Serena Eteng's claims of significant limitation of use of her cervical and lumbar spine and plaintiff Andre Allen's claims of significant limitation of use of his lumbar spine and right knee, and otherwise affirmed, without costs.
Defendants made a prima facie showing of entitlement to summary judgment as to plaintiff Eteng's claims of “significant limitation of use” of her cervical and lumbar spine, right shoulder and right knee (Insurance Law § 5102[d] ). They submitted expert medical reports finding normal ranges of motion, as well as the report of a radiologist who opined that changes shown in an MRI of the then 25–year–old plaintiff's cervical spine were degenerative. In opposition, plaintiff submitted competent medical evidence raising an issue of fact as to her cervical and lumbar spine injuries, including the report of a radiologist who found disc herniations, and of her treating physician who opined after full examination within a week of the accident that her injuries were causally related to the accident (see Linton v. Nawaz, 62 A.D.3d 434, 439, 879 N.Y.S.2d 82 [2009], affd. on other grounds 14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010]; see also June v. Akhtar, 62 A.D.3d 427, 878 N.Y.S.2d 59 [2009] ).
Defendants also met their initial burden as to plaintiff Allen's claims of “significant limitation of use” of his shoulders, right knee and cervical spine. They submitted expert medical reports finding normal ranges of motion, as well as the report of a radiologist who opined that changes shown in an MRI of the then 27–year–old plaintiff's knee were degenerative. However, defendants' experts' conflicting reports concerning their examinations of Allen's lumbar spine failed to establish the absence of limitations in range of motion, and their radiologist's report concerning the lumbar MRI is not in the record. In opposition, Allen submitted evidence sufficient to raise an issue of fact as to the injury to his right knee, since his treating physician found causation and limitations in range of motion, and his radiologist confirmed that an MRI revealed a tear of the medial meniscus, without noting any degeneration ( see Jacobs v. Rolon, 76 A.D.3d 905, 908 N.Y.S.2d 31 [2010] ). In addition, assuming defendants met their burden as to the lumbar spine injury, Allen submitted objective medical evidence of contemporaneous and continuing limitations, as well as the affirmed report of a radiologist finding disc herniations and his physician's opinion that his injury was causally related to the accident, which was sufficient to raise an issue of fact. Nevertheless, we note that if plaintiffs prevail at trial on their serious injury claims, they will be entitled to recovery also on their non-serious injuries caused by 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, 898 N.Y.S.2d 110 [2010] ).
Plaintiffs adequately explained the gap in treatment by asserting in their affidavits that they stopped receiving treatment for their injuries when their no-fault insurance
benefits were cut off ( see Browne v. Covington, 82 A.D.3d 406, 918 N.Y.S.2d 36 [2011] ).
Plaintiffs' bill of particulars refuted their 90/180–day claim, since both alleged that they were confined to bed for two weeks and to home for one month ( see Williams v. Baldor Specialty Foods, Inc., 70 A.D.3d 522, 895 N.Y.S.2d 394 [2010] ).