Opinion
6782 Index 300743/14
06-05-2018
Inez N. HOLLOMAN, Plaintiff–Appellant, v. AMERICAN UNITED TRANSPORTATION INC., et al., Defendants–Respondents.
Mark E. Weinberger, P.C., Rockville Centre (Eric M. Parchment of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondents.
Mark E. Weinberger, P.C., Rockville Centre (Eric M. Parchment of counsel), for appellant.
Marjorie E. Bornes, Brooklyn, for respondents.
Friedman, J.P., Sweeny, Gische, Mazzarelli, Gesmer, JJ.
Order, Supreme Court, Bronx County (Joseph Capella, J.), entered on or about April 20, 2017, which granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, the motion denied as to the claims of serious injury to the cervical and lumbar spine, and otherwise affirmed, without costs.
Defendants satisfied their initial burden of showing that plaintiff did not suffer serious injury to her cervical and lumbar spine through the affirmed report of their neurologist, who found normal ranges of motion and no objective evidence of injury (see Reyes v. Se Park, 127 A.D.3d 459, 8 N.Y.S.3d 22 [1st Dept. 2015] ; Rickert v. Diaz, 112 A.D.3d 451, 976 N.Y.S.2d 80 [1st Dept. 2013] ). Defendants also submitted the affirmed report of a radiologist, who opined that the bulging discs and focal disc protrusions shown on the MRI films were symptomatic of chronic degenerative disc disease, unrelated to the accident (see Paulling v. City Car & Limousine Servs., Inc., 155 A.D.3d 481, 65 N.Y.S.3d 19 [1st Dept. 2017] ).
In opposition, plaintiff raised an issue of fact through the affirmed report of her physiatrist, who found continuing range of motion limitations in the cervical and lumbar spine and causally related plaintiff's conditions to the accident (see Moreira v. Mahabir, 158 A.D.3d 518, 518–519, 71 N.Y.S.3d 38 [1st Dept. 2018] ; Encarnacion v. Castillo, 146 A.D.3d 600, 44 N.Y.S.3d 744 [1st Dept. 2017] ). Plaintiff's physiatrist adequately addressed the issue of causation by opining that the injuries were the direct result of the accident, and offering a different, yet equally plausible, explanation for them (see Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [1st Dept. 2011] ). Defendants' contention that plaintiff did not adequately address her gap or cessation of treatment was waived because it was raised for the first time in reply (see Moreira at 519, 71 N.Y.S.3d 38 ; Paulling at 481, 65 N.Y.S.3d 19 ).
Defendants satisfied their initial burden on plaintiff's 90/180–day claim through plaintiff's bill of particulars and deposition testimony admitting that she was only out of work for four weeks post-accident, and plaintiff's opposition failed to raise an issue of fact (see Komina v. Gil, 107 A.D.3d 596, 597, 968 N.Y.S.2d 457 [1st Dept. 2013] ).