Opinion
9597 Index 302312/16
06-11-2019
Martel RIOLLANO, et al., Plaintiffs–Appellants, v. James F. LEAVEY, Defendant–Respondent.
Krentsel & Guzman, LLP, New York (Steven E. Krentsel of counsel), for appellants. Law Office of Brian Rayhill, Elmsford (Renaud T. Bleecker of counsel), for respondent.
Krentsel & Guzman, LLP, New York (Steven E. Krentsel of counsel), for appellants.
Law Office of Brian Rayhill, Elmsford (Renaud T. Bleecker of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Gesmer, Kern, Singh, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about January 24, 2018, which granted defendant's motion for summary judgment dismissing the complaint, and denied as moot plaintiffs' motion for partial summary judgment on the issue of liability, unanimously modified, on the law, defendant's motion denied as to plaintiff Ejamai Ovbude, Ovbude's claims as related to the cervical spine and lumbar spine reinstated, partial summary judgment on the issue of liability granted in his favor, and otherwise affirmed, without costs.
Defendant established prima facie that plaintiff Martel Riollano did not sustain serious injuries to his right shoulder by submitting the affirmed report of his orthopedic surgeon finding only minor limitations in the shoulder (see Licari v. Elliott, 57 N.Y.2d 230, 238–239, 455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982] ; Style v. Joseph, 32 A.D.3d 212, 214 n.*, 820 N.Y.S.2d 26 [1st Dept. 2006] ). In opposition, Riollano failed to raise a triable issue of fact. While his orthopedic surgeon found persisting limitations, the limitations were also minor, and insufficient to raise a triable issue of fact (see Stevens v. Bolton, 135 A.D.3d 647, 648, 24 N.Y.S.3d 269 [1st Dept. 2016] ; Rickert v. Diaz, 112 A.D.3d 451, 452, 976 N.Y.S.2d 80 [1st Dept. 2013] ). Defendant established prima facie that plaintiff Ejamai Ovbude did not sustain serious injuries to his cervical or lumbar spine by submitting the sworn reports of his acupuncturist and chiropractor, and the affirmed report of his orthopedic surgeon, all finding normal range of motion and negative objective clinical test results, and opining that plaintiff's alleged injuries had resolved (see Holloman v. American United Transp. Inc., 162 A.D.3d 423, 423, 75 N.Y.S.3d 26 [1st Dept. 2018] ; Moreira v. Mahabir, 158 A.D.3d 518, 518, 71 N.Y.S.3d 38 [1st Dept. 2018] ). Ovbude raised a triable issue of fact by submitting the affirmed report of his orthopedic surgeon who, based on a recent evaluation, found persisting range of motion limitations and positive clinical test results, as well as MRI reports showing disc bulges with a herniation at C5–6, and nerve root impingement at L3 (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 352–353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ). The MRI reports, although unaffirmed, are admissible because they were not the sole basis for Ovbude's opposition to defendant's motion (see Clemmer v. Drah Cab Corp., 74 A.D.3d 660, 661–662, 905 N.Y.S.2d 31 [1st Dept. 2010] ). Contrary to defendant's contention, Dr. Hausknecht need not provide a quantified assessment of Ovbude's injuries upon his initial evaluation, and his recording of symptoms is sufficient (see Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ). Ovbude's testimony that his insurance stopped covering treatments adequately explained the gap in treatment (see Ramkumar v. Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 906, 976 N.Y.S.2d 1, 998 N.E.2d 801 [2013] ).
As the record does not reflect a total loss of use any of the above parts of the body, plaintiffs' claims under the permanent loss of use category should be dismissed (see Oberly v. Bangs Ambulance, 96 N.Y.2d 295, 299, 727 N.Y.S.2d 378, 751 N.E.2d 457 [2001] ).
In view of the reinstatement of Ovbude's claims as noted, we grant him summary judgment on the issue of liability. It is undisputed that defendant rear-ended Riollano's car while it was stopped, and defendant has not come forward with an adequate, nonnegligent explanation for the accident (see Urena v. GVC Ltd., 160 A.D.3d 467, 75 N.Y.S.3d 7 [1st Dept. 2018] ).