Opinion
14760 Index No. 27406/19E Case No. 2021–02003
12-02-2021
Melisa LAMAR–VATERPOOL, Plaintiff–Appellant, v. Juan I. DEVORA et al., Defendants–Respondents.
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Garden City (David Matthew Kittrell of counsel), for appellant. Baker, McEvoy & Moskovits, P.C., Brooklyn (Marjorie E. Bornes of counsel), for respondents.
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Garden City (David Matthew Kittrell of counsel), for appellant.
Baker, McEvoy & Moskovits, P.C., Brooklyn (Marjorie E. Bornes of counsel), for respondents.
Gische, J.P., Kapnick, Kern, Gesmer, Kennedy, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered April 5, 2021, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the claim of serious injury to plaintiff's spine and the claim under the 90/180-day category of Insurance Law § 5102(d), unanimously affirmed, without costs.
Contrary to plaintiff's reading of the order on appeal, the motion court did not find, as a matter of law, that plaintiff had sustained a serious injury involving a significant limitation of use to her left shoulder; rather, the motion court found only that plaintiff had raised a triable issue of fact with respect to that shoulder injury. Although plaintiff did not present evidence of permanent or significant limitations of use in her spine, if she prevails on her serious injury claim because of her shoulder injury, she will be entitled to recover damages to compensate her for all injuries caused by the accident, whether or not they meet the meet the serious injury threshold (see Kang v. Almanzar, 116 A.D.3d 540, 541, 984 N.Y.S.2d 42 [1st Dept. 2014], citing Rubin v. SMSTaxi Corp ., 71 A.D.3d 548, 549, 898 N.Y.S.2d 110 [1st Dept. 2010] ).
The court correctly dismissed plaintiff's claims under the other serious injury categories of Insurance Law § 5102(d). As to the 90/180-day category, there are no issues of fact as to whether plaintiff was confined to bed or home for any period after the accident (see e.g. Streeter v. Stanley, 128 A.D.3d 477, 478, 10 N.Y.S.3d 11 [1st Dept. 2015] ). Likewise, there are no issues of fact as to whether plaintiff sustained a "permanent loss of use" or "permanent consequential limitation" of any body part (see e.g. Smith v. Green, 188 A.D.3d 473, 474, 131 N.Y.S.3d 879 [1st Dept. 2020] ).
We have considered the parties’ remaining contentions and find them unavailing.