| Ayala v Douglas |
| 2008 NY Slip Op 09650 [57 AD3d 266] |
| December 9, 2008 |
| Appellate Division, First Department |
| Vincent Ayala, an Infant, by His Mother and Natural Guardian,Layda Rosa, et al., Respondents, v Carol Douglas,Appellant. |
—[*1] Levine & Blit, PLLC, New York (Leslie J. Levine of counsel), for respondents.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered July 30, 2007,which denied defendant's motion for summary judgment dismissing the complaint on the groundthat the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), and granted plaintiffs' cross motion for summary judgment on the issue ofliability, unanimously modified, on the law, to grant defendant's motion to the extent ofdismissing the infant plaintiff's 90/180-day claim, and otherwise affirmed, without costs.
Defendant established prima facie that the infant plaintiff did not sustain a serious injury (see e.g. Nagbe v Minigreen HackingGroup, 22 AD3d 326 [2005]). She submitted an orthopedic surgeon's findings onexamination that plaintiff's sprains of the cervical, thoracic and lumbar spine and left knee hadresolved and a radiologist's findings that MRIs of plaintiff's lumbar spine showed degenerativechanges manifested by disc hydration, disc space narrowing and a mild annular bulge and that theMRI of plaintiff's left knee showed intact lateral menisci and no abnormalities.
In opposition, plaintiffs raised a triable issue of fact by providing objective evidence of apermanent disability causally related to the accident (see e.g. Engles v Claude, 39 AD3d 357 [2007]). They submitted anaffidavit by a physician who diagnosed a herniated disc and derangement of plaintiff's left knee,quantified limitations in the ranges of motion of the lumbar spine and left knee, and opined thatthe injuries were causally related to the accident, and a radiologist's report that the MRI ofplaintiff's left knee showed a tear of the medial meniscus, the MRI of his cervical spine showedstraightening of the normal lordosis, and the MRI of his lumbar spine revealed disc herniation.Although unsworn, plaintiff's radiologist's reports were properly considered, because they werereviewed by defendant's expert in reaching his conclusion (see id.).
Plaintiffs did not, however, raise an inference that a "medically determined" injury orimpairment prevented plaintiff from performing substantially all his usual and customary dailyactivities for at least 90 of the first 180 days following the accident (see e.g. Prestol v McKissock, 50 AD3d600, 601 [2008]). The only evidence as to this claim is plaintiff's testimony that he [*2]returned to school after three weeks and that he was unable toparticipate in gym and sports for some time.
In his testimony and affidavit, plaintiff stated that he was crossing the street with the lightand looked in both directions before stepping off the curb into the crosswalk, where he wasstruck by defendant's car. In opposition to plaintiffs' cross motion for summary judgment on theissue of liability, defendant submitted only an affirmation by her counsel, who had no personalknowledge of the facts (see Diaz v NewYork City Tr. Auth., 12 AD3d 316 [2004]). Concur—Tom, J.P., Gonzalez,Nardelli, Moskowitz and Renwick, JJ.