| Pearson v Guapisaca |
| 2009 NY Slip Op 03144 [61 AD3d 833] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Lynda Pearson, Respondent, v Quinde Guapisaca,Appellant. |
—[*1] Newman & Okun, P.C., New York, N.Y. (Darren R. Seilback of cuonsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Ambrosio, J.), dated September 24, 2008, which denied hismotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendant met his prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955, 956-957 [1992]; seealso Giraldo v Mandanici, 24 AD3d 419 [2005]).
In opposition, the papers submitted by the plaintiff were sufficient to raise a triable issue offact as to whether she sustained a serious injury to her right shoulder and cervical spine under thesignificant limitation of use and/or permanent consequential limitation of use categories ofInsurance Law § 5102 (d) as a result of the subject accident (see Williams v Clark, 54 AD3d942 [2008]; Casey v Mas Transp.,Inc., 48 AD3d 610 [2008]; Green v Nara Car & Limo, Inc., 42 AD3d 430 [2007]; Francovig v Senekis Cab Corp., 41AD3d 643, 644-645 [2007]; Acostav Rubin, 2 AD3d 657 [2003]). The plaintiff's treating orthopedic surgeon, Dr. HowardBaum, opined in his affirmed submissions, based on his contemporaneous and most recentexaminations of the plaintiff, as well as upon his review of the plaintiff's magnetic resonanceimaging (hereinafter MRI) reports, which showed, inter alia, a tear in the, supraspinatus [*2]tendon, a bulging disc at C2-3, and a herniated disc at C6-7, thatthe plaintiff's cervical and right shoulder injuries and observed range of motion limitations werepermanent and causally related to the subject accident. Also, the plaintiff relied on the affirmedmedical reports of Dr. Nunzio Saulle, a treating physician, which also revealed significantcontemporaneous and recent range-of-motion limitations in the plaintiff's right shoulder andcervical spine.
The affirmation of Dr. Baum specifically addressed the findings of degeneration by thedefendant's experts. Dr. Baum disagreed with those assertions based upon his review of theplaintiff's right shoulder and cervical spine films. Dr. Baum concluded that the tear observed inthe right shoulder and the disc pathology noted in the cervical spine MRI were the result of thesubject accident and not any degenerative processes as alleged by the defendant's experts.Skelos, J.P., Florio, Balkin and Belen, JJ., concur.