| Morris v Cisse |
| 2009 NY Slip Op 00095 [58 AD3d 455] |
| January 13, 2009 |
| Appellate Division, First Department |
| Tonya Morris, Respondent, v Mady Cisse et al.,Appellants, et al., Defendant. |
—[*1] Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck (Sara Luca Salvi of counsel), forAbdul Sawaneh, appellant. Jacoby & Meyers, LLP, Newburgh (Kristine M. Cahill of counsel), for respondent.
Amended order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered on orabout February 29, 2008, which, insofar as appealed from, denied defendant Cisse's motion anddefendant Sawaneh's cross motion for summary judgment dismissing the complaint as againstthem, unanimously modified, on the law, to the extent of granting those portions of the motionsseeking summary judgment dismissing the claims based on the 90/180 provision of InsuranceLaw § 5102 (d), and dismissing those claims, and otherwise affirmed, without costs.
The record presents triable issues regarding whether plaintiff sustained a serious injury(Insurance Law § 5102 [d]) as a result of a car accident that occurred on September 10,2004 while a passenger in a livery vehicle. Considering the facts in the light most favorable toplaintiff (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]), the properlyaffirmed evidence submitted by plaintiff's physicians demonstrates that plaintiff may well havesustained a "significant limitation of use of a body function or system" (Insurance Law §5102 [d]).
While plaintiff was treated at and released from the emergency room at St. BarnabasHospital on the day of the accident, she remained home from work for two weeks. She thensought treatment at Bronx Rehabilitation Associates and continued treatment there until July 31,2006. Plaintiff's physician, Dr. Edwin Gangemi, reports that she sustained cervical strain andcervical radiculitis on the left side that diminished her extension by 10 degrees and that shecontinued to have left-sided pain. He further found continued pain, bilateral joint dysfunction,lumbosacral dysfunction, and lumbar radiculopathy. He prescribed various pain killers, includingUltracet and Flexoril. Dr. Michael Shapiro, a board certified radiologist, found muscle spasm,and central disc herniations at C3-4, C4-5 and C5-6 and Dr. Michael Marini, also of BronxRehabilitation Associates, found cervical radiculopathy and lumbosacral derangement,secondary to herniated disc and referable to the accident of September 10th. Based on that, there[*2]is substantial evidence that plaintiff sustained, inter alia, apermanent cervical strain, cervical and lumbar radiculopathy, central disc herniations and hadlimited range of motion in the cervical and lumbar spine (see Hoisington v Santos, 48 AD3d 333 [2008]; Brooks v Zises, 16 AD3d 221[2005]). She also underwent arthroscopic surgery to her left shoulder approximately 2½years after the accident at Montefiore Hospital following a diagnosis of olecranon bursitis by Dr.Sanjiv Bansal, an orthopedist who also attributed her shoulder impairment to the accident. Shehas continued treatment with Dr. Bansal. All of the above physicians' findings, are referable tothe accident on September 10, 2004. Plaintiff also attached affirmations from Dr. Michael L.Russ and Dr. Ronald Lanfranchi, who had performed independent medical examinations ofplaintiff in 2004. The latter physicians found that plaintiff was not disabled from performing herdaily activities, but Dr. Lanfranchi found that she sustained lumbosacral sprain/strain.
Contrary to defendants' contention, there is no evidence that plaintiff had a preexisting ordegenerative condition prior to the subject accident (see Pommells v Perez, 4 NY3d 566, 577-578 [2005]), and therecord is devoid of evidence of any gap in treatment (id. at 574). The conclusion of Dr.Stanley Ross, who examined plaintiff on one occasion in October 2006, that any strain or sprainthat plaintiff sustained had been resolved and that she could carry on daily activities withoutrestriction is undermined by the subsequent arthroscopic surgery and continuing treatment.
However, those portions of the motions seeking summary judgment dismissing the claimunder the 90/180-day category should be granted. Defendants made a prima facie showing ofentitlement to judgment as a matter of law dismissing that claim by establishing that plaintiffonly missed two weeks of work following the accident (see Camacho v Dwelle, 54 AD3d 706 [2008]; Onishi v N & B Taxi, Inc., 51 AD3d594 [2008]; Thompson vAbbasi, 15 AD3d 95, 96-97 [2005]). In opposition, plaintiff failed to raise a triable issueof fact regarding whether during the first 180 days following the accident she was "curtailedfrom performing [her] usual activities to a great extent rather than some slight curtailment"(Gaddy v Eyler, 79 NY2d 955, 958 [1992], quoting Licari v Elliott, 57 NY2d230, 236 [1982]). Concur—Saxe, J.P., Sweeny, McGuire, Renwick and Freedman, JJ.