| Hernandez v Rodriguez |
| 2009 NY Slip Op 04946 [63 AD3d 520] |
| June 16, 2009 |
| Appellate Division, First Department |
| Natasha Hernandez, Respondent, v Mariluz Rodriguez,Appellant, et al., Defendants. (And Other Actions.) |
—[*1] Julio J. Marino, Great Neck, for respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered January 23,2009, which denied defendant-appellant's motion for summary judgment dismissing thecomplaint as against her on the ground that plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d), unanimously modified, on the law, to dismissplaintiff's 90/180-day claim of serious injury as against all defendants, and otherwise affirmed,without costs.
Appellant made a prima facie showing of entitlement to summary judgment by submitting,inter alia, the affirmed reports of a neurologist and an orthopedist, who both examined plaintiffand determined, based upon the objective tests conducted, that she had not sustained a seriousinjury.
In opposition, plaintiff raised a triable issue of fact as to whether she suffered a permanentconsequential limitation or a significant limitation of her cervical and lumbar spines as a result ofthe accident. The affirmed report of plaintiff's treating physician provided that as a result of theaccident, plaintiff sustained, inter alia, disc bulges and herniations and had decreased range ofmotion in her cervical and lumbar spine (see Ayala v Douglas, 57 AD3d 266 [2008]). Furthermore,appellant's claim that plaintiff's condition was degenerative in nature was speculative as thephysician who offered this opinion did not review the MRIs taken of plaintiff's cervical andlumbar spine (compare Valentin vPomilla, 59 AD3d 184 [2009]). Nor was there an unexplained gap in treatment as therecord shows that following the accident, plaintiff underwent physical therapy and ceased suchtherapy after reaching the maximum medical improvement (see Pommells v Perez, 4 NY3d 566, 577 [2005]).
Plaintiff, however, failed to raise an issue of fact regarding whether she suffered a90/180-day injury (see e.g. Blackmon vDinstuhl, 27 AD3d 241 [2006]). Notably, plaintiff's bill of particulars provided that shewas confined to bed and home for one week following the [*2]accident. In view of this finding, plaintiff's claim of serious injuryunder the 90/180-day category is dismissed as against all defendants (see Lopez v Simpson, 39 AD3d420, 421 [2007]). Concur—Saxe, J.P., Sweeny, Moskowitz, Acosta and Richter, JJ.