| Sforza v Big Guy Leasing Corp. |
| 2008 NY Slip Op 04343 [51 AD3d 659] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Helena Sforza, Respondent, v Big Guy Leasing Corp. et al.,Appellants. |
—[*1] Sacco & Fillas, LLP, Whitestone, N.Y. (Andrew Wiese of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendants appeal froman order of the Supreme Court, Kings County (Bunyan, J.), dated November 14, 2007, whichdenied their motion for summary judgment dismissing the complaint on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants met their prima facie burden of showing that the plaintiff, who was 64 yearsold at the time of the subject accident, did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident. In support of their motion, thedefendants submitted an affirmation of a neurologist who quantified restrictions in range ofmotion in the plaintiff's cervical and lumbar spine, but, based upon a physical examination,attributed those restrictions to age-related crepitus and arthritis (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Theneurologist stated that magnetic resonance imaging (hereinafter MRI) examinations of theplaintiff's cervical and lumbar spine were "reported to show significant DJD changes" but it isunclear as to whether the neurologist examined the MRI films, or who reported degenerativechanges.
In response to this prima facie showing, the plaintiff raised a triable issue of fact. Anaffirmed MRI report indicated that the plaintiff suffered herniated discs in the cervical region ofthe spine and herniated and bulging discs in the lumbar region of the spine. An initial X ray ofthe [*2]cervical spine revealed "some degenerative change."However, Dr. Baum, the plaintiff's treating orthopedist, concluded that "while this patient mayhave had some underlying development of degenerative joint disease due to her age, the MRIfindings of Multi-level bulging and herniated discs to both her neck and back are a direct resultof the impact she sustained as a result" of the accident. Dr. Baum noted that the plaintiff sufferedquantified restrictions of range of motion of the cervical and lumbar spine based uponexaminations shortly after the accident, and based upon a recent examination.
The defendants seek to attribute the plaintiff's injury to an accident in or about 1992 in whichthe plaintiff's lower back was injured. The plaintiff testified at her deposition that she neverinjured her neck, and the injury to her lower back healed. Accordingly, there is no evidence inthis record of a preexisting injury to the plaintiff's neck. Further, considering the length of timebetween the two accidents, and the plaintiff's testimony that her lumbar region of the spinecompletely healed, Dr. Baum's failure to consider the 1992 accident did not render hisconclusions speculative.
Accordingly, there are triable issues of fact which preclude the granting of summaryjudgment. Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.