| Chintam v Fenelus |
| 2009 NY Slip Op 06642 [65 AD3d 946] |
| September 24, 2009 |
| Appellate Division, First Department |
| Vishnu Chintam, Respondent-Appellant, v Joslin Fenelus,Appellant-Respondent. |
—[*1] Weiser & Associates, LLP, New York (Huy M. Le of counsel), forrespondent-appellant.
Order, Supreme Court, New York County (Paul Wooten, J.), entered April 3, 2009, whichdenied defendant's motion for summary judgment dismissing the complaint on the ground thatplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d),unanimously modified, on the law, to dismiss plaintiff's claims of injury to his lumbar spine anda significant disfigurement, and otherwise affirmed, without costs.
Defendant established prima facie, through her experts' affirmations reporting the results ofthe objective tests they performed, that plaintiff did not suffer a serious injury within themeaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98NY2d 345, 350-351 [2002]), notwithstanding the experts' failure to review the MRI and EMGreports (see Onishi v N & B Taxi,Inc., 51 AD3d 594, 595 [2008]; Style v Joseph, 32 AD3d 212, 214 [2006]).
In opposition, plaintiff presented sufficient evidence to raise an issue of fact as to theexistence of a "permanent consequential limitation of use of a body organ or member" or a"significant limitation of use of a body function or system" (Insurance Law § 5102 [d]).His treating physician's affirmation reported, based on objective tests, losses of range of motionin his cervical and lumbar spine and in his right ankle (see Toure, 98 NY2d at 352-353).However, as to his claimed lumbar spine injury, plaintiff failed to present sufficient evidence tomeet defendant's assertion of lack of causation, which arose from plaintiff's own depositiontestimony admitting a prior work-related injury to his lower back, with "positive" X ray (see Brewster v FTM Servo, Corp., 44AD3d 351, 352 [2007]). Plaintiff's physician's assertion that the prior injury had resolvedbefore the automobile accident was conclusory, made apparently in reliance solely on plaintiff'sstatements, and not substantiated by any medical or objective evidence (see DeSouza v Hamilton, 55 AD3d352 [2008]). As the evidence of this prior injury to his lumbar spine was plaintiff's own"persuasive" admission, defendant was not required to submit medical records of the injury (see Linton v Nawaz, 62 AD3d434, 442-443 [2009]).
Defendant's argument that plaintiff failed to explain the more-than-one-year gap in histreatment (see Pommells v Perez, 4NY3d 566, 572, 574 [2005]) is unpreserved and not properly considered on appeal, asdefendant did not raise the issue of the treatment gap in the motion court, where plaintiff mighthave offered evidence to explain the gap.[*2]
While the court's order appears to deny defendant'smotion in its entirety, its discussion makes clear that the court found that plaintiff failed to raisean issue of fact whether the scar above his right eyebrow is a "significant disfigurement" withinthe meaning of the statute. Upon our review of the photograph in the record, we concur (seeHutchinson v Beth Cab Corp., 207 AD2d 283, 283-284 [1994]). Concur—Tom, J.P.,Sweeny, McGuire, DeGrasse and Freedman, JJ.