Opinion
990 CA 22-00097
03-24-2023
Shakirah M. GILBERT, Plaintiff-Appellant, v. Lauren E. DANIELS and Kathryn M. Daniels, Defendants-Respondents.
LAW OFFICE OF J. MICHAEL HAYES, BUFFALO (DEANNA D. RUSSELL OF COUNSEL), FOR PLAINTIFF-APPELLANT. BURGIO, CURVIN AND BANKER, BUFFALO (JAMES P. BURGIO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
LAW OFFICE OF J. MICHAEL HAYES, BUFFALO (DEANNA D. RUSSELL OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BURGIO, CURVIN AND BANKER, BUFFALO (JAMES P. BURGIO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, and the amended complaint is reinstated.
Memorandum: In this action to recover damages for injuries allegedly sustained in an automobile accident, plaintiff appeals from an order and judgment that granted defendants’ motion for summary judgment dismissing the amended complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). We reverse.
Initially, we note that plaintiff does not challenge on appeal Supreme Court's conclusion that defendants met their initial burden on the motion with respect to causation and every applicable category of serious injury, and plaintiff therefore has abandoned any issue with respect thereto (see generally Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ). We agree with plaintiff, however, that in response to defendants’ submissions, she met her burden of "coming forward with evidence indicating a serious injury causally related to the accident" ( Pommells v. Perez , 4 N.Y.3d 566, 579, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ; see Overhoff v. Perfetto , 92 A.D.3d 1255, 1256, 938 N.Y.S.2d 403 [4th Dept. 2012], lv denied 19 N.Y.3d 804, 2012 WL 1988438 [2012] ).
We conclude that plaintiff submitted evidence raising triable issues of material fact on the issue of serious injury based on the submissions of her experts, who concluded that there was objective evidence of injury to plaintiff's head, neck, and back (see Gamblin v. Nam , 200 A.D.3d 1610, 1612-1613, 161 N.Y.S.3d 550 [4th Dept. 2021] ; Snyder v. Daw , 175 A.D.3d 1045, 1046, 106 N.Y.S.3d 710 [4th Dept. 2019] ).
Further, we conclude that plaintiff's experts raised a triable issue of fact on the issue of causation. With respect to plaintiff's head injury, the expert neurologist reviewed the post-accident MRI of the brain and concluded that the abnormal findings were caused by the accident. Further, with respect to the injuries to plaintiff's neck and back, plaintiff's expert chiropractor specifically "address[ed] the manner in which plaintiff's physical injuries were causally related to the accident in light of [her] past medical history" ( Stroh v. Kromer , 207 A.D.3d 1125, 1126, 171 N.Y.S.3d 673 [4th Dept. 2022] [internal quotation marks omitted]). In particular, the expert explained that he reviewed the MRI films of each body part taken before and after the accident and concluded that changes evidenced by the post-accident MRI were traumatically aggravated, exacerbated, and caused and contributed to by the subject accident (cf. Stroh , 207 A.D.3d at 1126, 171 N.Y.S.3d 673 ; Overhoff , 92 A.D.3d at 1256, 938 N.Y.S.2d 403 ). We note that the court erred in concluding that there was no evidentiary value to the chiropractor's comparison of the pre- and post-accident MRI reports; contrary to the court's assertion, a chiropractor is "competent to render an opinion based on CT or MRI film studies" ( Mays v. Green , 165 A.D.3d 1619, 1621, 84 N.Y.S.3d 302 [4th Dept. 2018] ; see Carpenter v. Steadman , 149 A.D.3d 1599, 1600, 53 N.Y.S.3d [4th Dept. 2017] ).
Ultimately, this case presents a classic battle of the experts, and "conflicting expert opinions may not be resolved on a motion for summary judgment" ( Edwards v. Devine , 111 A.D.3d 1370, 1372, 975 N.Y.S.2d 277 [4th Dept. 2013] [internal quotation marks omitted]; see Hines-Bell v. Criden , 145 A.D.3d 1537, 1538, 43 N.Y.S.3d 644 [4th Dept. 2016] ).