| Onishi v N & B Taxi, Inc. |
| 2008 NY Slip Op 04782 [51 AD3d 594] |
| May 29, 2008 |
| Appellate Division, First Department |
| Takahisa Onishi et al., Respondents, v N & B Taxi, Inc., etal., Appellants. |
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Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about September 28,2007, which denied defendants' motion for summary judgment dismissing the complaint for lackof serious injury (Insurance Law § 5102 [d]), unanimously modified, on the law, plaintiff'sclaim for nonpermanent injury (90/180 claim) dismissed, and otherwise affirmed, without costs.
Defendants established their entitlement to summary judgment dismissing plaintiff's90/180-day claim based upon the revelation in plaintiff's deposition testimony and bill ofparticulars that he stayed home from work for only 11 days after the accident (see Guadalupe v Blondie Limo, Inc.,43 AD3d 669 [2007]). Plaintiff failed to raise a triable issue of fact as to whether he wasincapacitated from performing all of his usual and customary activities for at least 90 out of 180days following the accident. Although he testified that he was advised by his physicians to refrainfrom landscaping and heavy lifting, and that he was somewhat restricted in the activities of hisdaily living, such evidence is insufficient to raise a triable issue of fact as to whether plaintiffsustained a "90/180" injury (Thompsonv Abbasi, 15 AD3d 95, 101 [2005]; see also Gorden v Tibulcio, 50 AD3d 460,463-464 [2008]).
However, with regard to plaintiff's claim of permanent injury, the motion was properlydenied. Defendants made a prima facie showing of entitlement to judgment as a matter of lawdismissing that claim by submitting, among other things, the affirmed report of their expert whoexamined plaintiff. Contrary to the finding of Supreme Court, the mere fact that defendants'expert did not address findings in diagnostic and operative reports indicating that plaintiff had aherniated disc does not mean that defendants failed to meet their initial burden. A herniated disc,by itself, is insufficient to constitute a "serious injury"; rather, to constitute such an injury, aherniated disc must be accompanied by objective evidence of the extent of alleged physicallimitations resulting from the herniated disc (Pommells v Perez, 4 NY3d 566, 574 [2005]; Servones v Toribio, 20 AD3d 330[2005]; Kearse v New York City Tr.Auth., 16 AD3d 45, 49-50 [2005]). Thus, we recently rejected the notion that adefendant cannot meet its initial burden on summary judgment of demonstrating the absence of"serious injury" where the defendant's expert fails to address diagnostic reports indicating that theplaintiff has herniated or bulging disks (Style v Joseph, 32 AD3d 212 [2006]; see Santana v Khan, 48 AD3d 318[2008]).
Nix v Yang Gao Xiang (19AD3d 227 [2005]), cited by Supreme Court, is distinguishable. In Nix, this Courtdetermined that a defendant's expert's report was insufficient to demonstrate [*2]that the plaintiff did not sustain a "serious injury" because the"report was conclusory, failed to indicate what, if any, objective tests were relied upon, and failedto address the objective findings of plaintiff's MRI and CT scan, which showed disc herniationsand bulges." (Id.) In other words, the report suffered from multiple infirmities. Here,however, defendants' expert's report was neither conclusory nor failed to demonstrate the absenceof "serious injury." Similarly, Pattersonv Rivera (49 AD3d 337 [2008]) and Wadford v Gruz (35 AD3d 258 [2006]) are distinguishable sincethe defendants' experts in those cases failed to address not only MRI reports indicating herniateddiscs but other evidence of serious injury as well.
In opposition to defendants' prima facie showing of entitlement to judgment as a matter oflaw dismissing his claim of permanent injury, plaintiff raised a triable issue of fact, principally onthe strength of the affirmation of his neurologist. Defendants' claim that plaintiff has apreexisting medical condition that accounts for some or all of the injuries plaintiff claimed werecaused by the accident was not raised by defendants before Supreme Court. Furthermore,defendants abandoned their claim, raised in their reply papers before Supreme Court, thatplaintiff's experts failed to explain a gap in treatment. Concur—Gonzalez, J.P., Catterson,McGuire and Moskowitz, JJ.