Escobar v Guzman

2009 NY Slip Op 01574

Decided on March 5, 2009

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 5, 2009
Tom, J.P., Saxe, Catterson, Moskowitz, DeGrasse, JJ.
4868 20753/05






Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Colin F. Morrissey of counsel), for appellants.
The Edelsteins, Faegenburg & Brown, LLP, New York (Evan
M. Landa of counsel), for respondent.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about December 11, 2007, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants met their initial burden of establishing prima facie that plaintiff's alleged injuries did not satisfy the no-fault serious injury threshold (Insurance Law § 5102[d]). Defendants' expert concluded that plaintiff suffered from degenerative disc disease. This was based on his review of the MRI performed at the facility of plaintiff's expert, Dr. Roskin, on June 7, 2004. Although defendants failed to address the latter's contemporaneous MRI examination report of herniated discs, a finding of degenerative disc disease is not inconsistent with the claimed herniations.

Plaintiff in opposition raised a triable issue of fact through the affirmed report of Dr. Augustyniak and the MRI report of Dr. Roskin (see Prestol v McKissock, 50 AD3d 600 [2008]). Similarly, the affirmed letters of Dr. Patel as to plaintiff's inability to resume work until September 2005 sufficiently raised a factual issue as to the 90/180 category.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 5, 2009

CLERK