Opinion
5720 Index 301455/12
02-15-2018
Rufina MOREIRA, Plaintiff–Appellant, v. Prakash MAHABIR, et al., Defendants–Respondents.
Sacco & Fillas, LLP, Astoria (Chad B. Russell of counsel), for appellant. Lawrence Heisler, Brooklyn (Harriet Wong of counsel), for Prakash Mahabir and New York City Transit Authority, respondents. Saretsky Katz & Dranoff, L.L.P., New York (Daniel Rifkin of counsel), for Mohammad Hossain and Relax Auto Services, Inc., respondents.
Sacco & Fillas, LLP, Astoria (Chad B. Russell of counsel), for appellant.
Lawrence Heisler, Brooklyn (Harriet Wong of counsel), for Prakash Mahabir and New York City Transit Authority, respondents.
Saretsky Katz & Dranoff, L.L.P., New York (Daniel Rifkin of counsel), for Mohammad Hossain and Relax Auto Services, Inc., respondents.
Sweeny, J.P., Manzanet–Daniels, Gische, Kahn, Oing, JJ.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 21, 2016, which granted defendants' motions for summary judgment dismissing the complaint on the threshold issue of serious injury pursuant to Insurance Law § 5102(d), unanimously modified, on the law, to deny the motions as to plaintiff's claims regarding her cervical spine and lumbar spine under the permanent consequential limitation and significant limitation categories, and otherwise affirmed, without costs.
Plaintiff alleges that she sustained serious injuries to her cervical and lumbar spine following a motor vehicle accident that occurred in July 2011 when she was a passenger on a City bus. Defendants made a prima facie showing that plaintiff did not sustain serious injuries involving significant or permanent consequential limitation in use of those body parts through the affirmed reports of an orthopedic surgeon and neurologist who found normal ranges of motion, negative objective test results, and resolved sprains and strains (see Rickert v. Diaz , 112 A.D.3d 451, 451–452, 976 N.Y.S.2d 80 [1st Dept. 2013] ). Defendant's neurologist explained that the limitations he measured in the lumbar spine were due to plaintiff's limited effort on examination, not any injury related to the accident (see Mercado–Arif v. Garcia , 74 A.D.3d 446, 902 N.Y.S.2d 72 [1st Dept. 2010] ). However, defendants' experts did not raise any issue as to causation, since the orthopedic surgeon acknowledged that the accident caused cervical and lumbar sprain that had resolved. While their neurologist stated that the MRIs "appeared to show pre-existing herniations," he did not review the MRI films himself, and his equivocal statement was inconsistent with the referenced MRI reports, which identified specific herniations and noted no significant degenerative disc disease in the spine.
In opposition, plaintiff raised an issue of fact through the affirmed reports of a physician who examined her soon after the accident, and another who examined her recently and observed significant limitations in range of motion of the affected body parts, as well as positive results on objective tests for cervical and lumbar injury (see Encarnacion v. Castillo , 146 A.D.3d 600, 601, 44 N.Y.S.3d 744 [1st Dept. 2017] ; DaCosta v. Gibbs , 139 A.D.3d 487, 487, 33 N.Y.S.3d 160 [1st Dept. 2016] ). Although the contents of some of the medical records submitted by plaintiff were inadmissible because they were unaffirmed (see Barry v. Arias , 94 A.D.3d 499, 499, 942 N.Y.S.2d 57 [1st Dept. 2012] ), they could "be considered for the purpose of demonstrating that plaintiff sought medical treatment for h[er] claimed injuries contemporaneously" ( Vishevnik v. Bouna , 147 A.D.3d 657, 659, 48 N.Y.S.3d 93 [1st Dept. 2017] ).
To the extent that defendants raised an issue as to degeneration, plaintiff's physicians adequately addressed the issue by ascribing her injuries to a different, yet equally plausible, explanation—the accident (see Pommells v. Perez , 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ; Camacho v. Espinoza , 94 A.D.3d 674, 942 N.Y.S.2d 539 [1st Dept. 2012] ; Yuen v. Arka Memory Cab Corp. , 80 A.D.3d 481, 915 N.Y.S.2d 529 [1st Dept. 2011] ). Defendants' contention that plaintiff failed to adequately explain a cessation of treatment is unpreserved, since it was first raised in reply and may not be raised on appeal (see Paulling v. City Car & Limousine Servs., Inc. , 155 A.D.3d 481, 65 N.Y.S.3d 19 [1st Dept. 2017] ; Tadesse v. Degnich , 81 A.D.3d 570, 917 N.Y.S.2d 569 [1st Dept. 2011] ). In any event, plaintiff's physician noted that therapy and other treatment ceased because it failed to improve her condition (see Pommells v. Perez , 4 N.Y.3d at 577, 797 N.Y.S.2d 380, 830 N.E.2d 278 ).
Defendants met their prima facie burden as to the 90/180–day claim by submitting plaintiff's bill of particulars and deposition testimony, where she admitted that she had not been confined to her bed and home for the requisite period of time after the accident (see Komina v. Gil , 107 A.D.3d 596, 597, 968 N.Y.S.2d 457 [1st Dept. 2013] ). In opposition, plaintiff did not raise an issue of fact.