Opinion
11-16-2017
Herbert L. PAULLING, Plaintiff–Appellant, v. CITY CAR & LIMOUSINE SERVICES, INC., et al., Defendants–Respondents.
Greenberg Law P.C., New York (Jennifer A. Shafer of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for respondents.
Greenberg Law P.C., New York (Jennifer A. Shafer of counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for respondents.
RENWICK, J.P., MANZANET–DANIELS, ANDRIAS, KERN, OING, JJ.
Order, Supreme Court, Bronx County (Donald Miles, J.), entered on or about August 25, 2016, 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 reversed, on the law, without costs, and the motion denied.
Defendants met their burden on summary judgment by tendering the affirmed reports of their neurologist, who found normal range of motion upon recent examination, of their radiologist, who concluded that plaintiff's MRI films showed preexisting degenerative conditions unrelated to the accident, and their emergency medicine specialist, who found that plaintiff's post-accident hospital records were inconsistent with a traumatically-induced injury (see Frias v. Gonzalez–Vargas, 147 A.D.3d 500, 47 N.Y.S.3d 30 [1st Dept.2017] ; Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590, 920 N.Y.S.2d 24, [1st Dept.2011] ).
In opposition, however, plaintiff raised a triable issue of fact as to whether he sustained an injury involving a "permanent consequential" or "significant" limitation of use of his lumbar spine through his treating physician, who found limitations in spinal range of motion on initial and recent examination. Objective evidence of injury was confirmed by plaintiff's radiologist (see Pantojas v. Lajara Auto Corp., 117 A.D.3d 577, 986 N.Y.S.2d 87 [1st Dept.2014] ; Barhak v. L. Almanzar–Cespedes, 101 A.D.3d 564, 957 N.Y.S.2d 40 [1st Dept.2012] ). Plaintiff's physician sufficiently addressed defendants' expert's findings of degeneration by opining that the injuries to the otherwise asymptomatic plaintiff were consistent with and causally related to the accident (see Pantojas at 578, 986 N.Y.S.2d 87 ; Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [1st Dept.2011] ).
Defendants waived any argument regarding an alleged gap in treatment by waiting until their reply to raise the argument (see Sylla v. Brickyard Inc., 104 A.D.3d 605, 961 N.Y.S.2d 455 [1st Dept.2013] ). In any event, the evidence shows that plaintiff received treatment during the alleged "gap," as evidenced by, inter alia, his Workers' Compensation records, with examinations affirmed by his treating physician (see Swift v. New York Tr. Auth., 115 A.D.3d 507, 508, 981 N.Y.S.2d 706 [1st Dept.2014] ).
With respect to plaintiff's 90/180–day claim, although defendants' physicians did not examine plaintiff during the relevant period, defendants met their prima facie burden through the reports of their radiologist, whose opinion of preexisting degeneration was based on review of plaintiff's post-accident MRI films, and of their emergency room physician, who based his opinion on review of medical records that were created the day of the accident. Thus, it is of no moment that the actual reports were rendered later (see Coley v. DeLarosa, 105 A.D.3d 527, 529, 964 N.Y.S.2d 25 [1st Dept.2013] ). In opposition to defendants' prima facie showing, plaintiff raised an issue of fact through his physician's affirmed workers' compensation reports finding a 100% impairment during the relevant period and the physician's opinion that plaintiff's impairment was causally related to the accident.