| Shumway v Bungeroth |
| 2009 NY Slip Op 00041 [58 AD3d 431] |
| January 8, 2009 |
| Appellate Division, First Department |
| Denise Shumway, Respondent, v Harold Bungeroth et al.,Appellants. |
—[*1] Law Offices of Michael M. Goldberg, P.C., New York (Andrew Romer of counsel), forrespondent.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered February 26,2008, which denied defendants' motion for summary judgment dismissing the complaint,affirmed, without costs.
Defendants failed to meet their initial burden of establishing that plaintiff had not sustainedserious injury within the meaning of Insurance Law § 5102 (d). Defendants' medicalexpert, who examined plaintiff four years after her April 2003 accident, reviewed only the policeaccident report and the bill of particulars, and did not address any of plaintiff's medical records,including reports of examinations in May and July 2003 revealing diminished range of motion,in specified degrees, in the cervical, thoracic, lumbar, and sacral hip areas, as well as a June 2003MRI report indicating disc bulges and herniation.
We agree with the dissent insofar as it states that the failure of a defendant's medical expertto discuss diagnostic tests indicating bulging or herniated discs will not, by itself, require denialof a defense summary judgment motion (see Onishi v N & B Taxi, Inc., 51 AD3d 594 [2008]). However,the decision in Onishi, relied on by the dissent, notes that where, as here, a defendant'sexpert fails to address "not only MRI reports indicating herniated discs but other evidence ofserious injury as well," the defense has not met its initial burden on summary judgment(id. at 596).
Even if defendants were deemed to have made a prima facie showing, a triable issue of factwas raised by plaintiff's evidence, including her expert's affirmed report of an examinationshowing a continued quantified loss of range of motion after defendant's expert's examination.Concur—Lippman, P.J., Buckley, Sweeny and Renwick, JJ.
Andrias, J., dissents in a memorandum as follows: While defendants' neuromuscularrehabilitative expert, who examined plaintiff four years after the April 2003 automobile accidentand found no physical limitations, failed to address findings in plaintiff's medical records thatincluded a June 17, 2003 MRI report indicating that plaintiff had a disc herniation at L1-2 and adisc bulge at L5-S1, the mere failure to address these [*2]findingsdoes not mean that defendants failed to meet their initial burden of establishing a prima faciecase that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) (Onishi v N & B Taxi,Inc., 51 AD3d 594 [2008]; seealso Style v Joseph, 32 AD3d 212, 214 [2006]; Santana v Khan, 48 AD3d 318 [2008]). In opposition, plaintifffailed to raise a triable issue of fact regarding whether she sustained a serious injury.
The August 2007 report of plaintiff's chiropractor, aside from not being "contemporaneous,"noted minor limitations, but failed to compare any findings he made as to ranges of motion inMay and July 2003 with the "normal function, purpose and use of the affected body organ,member, function or system" (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).The only contemporaneous evidence, an unsworn May 27, 2003 report of a neurologicalconsultation, established that plaintiff had normal ranges of motion and normal straight leg raise.Moreover, plaintiff testified at her deposition that although she continued to have persistent neckand lower back pain, after the accident she stayed in bed for only two days and did not miss anytime from work, and that her treatment consisted of visits to the chiropractor for a year.Thereafter, she chose to stop treatment and started taking yoga classes.
Accordingly, I would reverse and grant defendants summary judgment dismissing thecomplaint.