| Martinez v Pioneer Transp. Corp. |
| 2008 NY Slip Op 01441 [48 AD3d 306] |
| February 19, 2008 |
| Appellate Division, First Department |
| Gladys Martinez et al., Appellants, et al.,Plaintiff, v Pioneer Transportation Corp. et al., Respondents. |
—[*1] Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), forrespondents.
Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered July 11, 2006, whichgranted defendants' motion for summary judgment against the Martinez plaintiffs on the issue ofserious injury, unanimously reversed, on the law, without costs, the motion denied, and thecomplaint reinstated on behalf of those plaintiffs.
The Martinez plaintiffs were allegedly injured in an automobile accident in May 2004, whentheir car was hit by defendants' school bus. Both were taken by ambulance to the hospital andreleased the same day, after X rays were taken. The driver was treated by a chiropractor over thecourse of four months, and remained out of work for three months. The passenger, a student,missed two months of school. Neither of these plaintiffs has received any medical treatment sincethe summer of 2004. The insurance company stopped paying for treatment, which appellantsclaim they terminated because they could not afford it, and it no longer seemed to have anybeneficial effect.
Defendants moved for summary judgment on the basis that the Martinez plaintiffs could notdemonstrate they sustained serious injury as defined in Insurance Law § 5102 (d).However, defendants' submissions were contradictory. Some of their submitted medical reportsand opinions indicate that objective tests were negative, and others reflect limitations in the rangeof motion of the spine, legs and back of each of these plaintiffs, and herniated and bulging discsfor both of them. The contradictory findings raise a triable issue of fact.
Where conflicting medical evidence is offered on the issue of whether a plaintiff's injuriesare permanent or significant, and varying inferences may be drawn, the question is one for thejury (see Noble v Ackerman, 252 AD2d 392, 395 [1998]). Since defendants neversustained their initial burden of establishing that each of the Martinez plaintiffs had not suffered[*2]a serious injury causally related to the accident, the burden ofproof never shifted to them (seeWhittaker v Webster Trucking Corp., 33 AD3d 613 [2006]). Concur—Mazzarelli,J.P., Williams, Sweeny, Catterson and Moskowitz, JJ.