Opinion
221 CA 18–01594
06-28-2019
Carol SMITH, Plaintiff–Respondent, v. Leaann HAMASAKI and Rosa Sose Hamasaki, Defendants–Appellants.
LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (MARK A. FORDEN OF COUNSEL), FOR DEFENDANTS–APPELLANTS. VAN HENRI WHITE, ROCHESTER, FOR PLAINTIFF–RESPONDENT.
LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (MARK A. FORDEN OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
VAN HENRI WHITE, ROCHESTER, FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs and the motion is denied with respect to the issue of serious injury.
Memorandum: Defendants appeal from an order that, insofar as appealed from, granted that part of plaintiff's motion seeking summary judgment on the issue of serious injury within the meaning of Insurance Law § 5102(d). We now reverse the order insofar as appealed from.
The court erred in granting that part of plaintiff's motion because plaintiff's own submissions raise triable issues of fact whether, as a result of a motor vehicle accident, she sustained a serious injury to her cervical spine under the categories of permanent consequential limitation of use and significant limitation of use (see generally Gawron v. Town of Cheektowaga , 125 A.D.3d 1467, 1468, 4 N.Y.S.3d 789 [4th Dept. 2015] ; Thomas v. Huh , 115 A.D.3d 1225, 1225, 982 N.Y.S.2d 634 [4th Dept. 2014] ; Summers v. Spada , 109 A.D.3d 1192, 1192, 971 N.Y.S.2d 773 [4th Dept. 2013] ). Although plaintiff's expert opined that plaintiff had limitations in range of motion that were causally related to the accident, some reports on which he relied included treatment records stating that plaintiff had a full range of motion, and stating that any injuries were caused by degenerative disease. Plaintiff's expert provided no explanation for those statements in plaintiff's own treatment records.
In any event, even assuming, arguendo, that plaintiff met her initial burden on her motion, we conclude that defendants raised an issue of fact in opposition by submitting the affidavit of their own expert, who opined that two years after the traffic accident there was no objective evidence of an orthopedic condition (see generally Jones v. Leffel , 125 A.D.3d 1451, 1452, 3 N.Y.S.3d 230 [4th Dept. 2015] ). Giving defendants, as the non-moving party, the benefit of every reasonable inference (see Houston v. McNeilus Truck & Mfg., Inc. , 124 A.D.3d 1210, 1211, 999 N.Y.S.2d 284 [4th Dept. 2015] ), we conclude that their expert's opinion raised an issue of fact whether plaintiff's injuries, although reflected in the MRIs and medical records generated shortly after the accident, had resolved during the following two years (see generally Lindo v. Brett , 149 A.D.3d 459, 462, 52 N.Y.S.3d 308 [1st Dept. 2017] ; Martinez v. Pioneer Transp. Corp. , 48 A.D.3d 306, 307, 851 N.Y.S.2d 194 [1st Dept. 2008] ).