| Colon v Bernabe |
| 2009 NY Slip Op 06720 [65 AD3d 969] |
| September 29, 2009 |
| Appellate Division, First Department |
| Melanie M. Colon, Appellant, v Bernardin GutierrBernabe et al., Respondents. |
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Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered November 3, 2008,which, inter alia, granted defendants' motion for summary judgment dismissing the complaint onthe ground that plaintiff did not sustain a serious injury as defined by Insurance Law §5102 (d), unanimously modified, on the law, to the extent of denying defendants' motion in partand reinstating plaintiff's claims that she sustained a permanent consequential limitation of use ofa body organ or member and/or a significant limitation of use of a body function or system, andremanding the matter for a determination of that prong of defendants' motion for summaryjudgment dismissing the action as against defendant Salem Truck Leasing, Inc. (Salem) and onplaintiff's cross motion to amend the complaint to assert a negligent entrustment claim as againstSalem, and otherwise affirmed, without costs.
Defendants established a prima facie entitlement to summary judgment by submitting theaffirmed reports of an orthopedic surgeon and a neurologist who, after conducting independentexaminations of plaintiff, concluded that plaintiff had full range of motion in her neck, back andupper and lower extremities, and suffered from no neurological disability. Defendants alsosubmitted the affirmed report of a radiologist, who, upon reviewing plaintiff's MRI films and CTscan, concluded that the disc bulges and/or herniations revealed through those tests wereconsistent with degenerative disc disease and not caused by the automobile accident at issue.Defendants also submitted plaintiff's deposition testimony, where she stated that she returned towork within two or three days of the accident.
Contrary to the determination of the motion court, plaintiff's opposition raised triable issuesof fact that she sustained a serious injury. The affidavit of plaintiff's treating chiropractorcontains objective, quantitative evidence with respect to diminished range of motion in thecervical and lumbar spine based on testing performed both immediately after the accident andthen again, approximately 20 months after the accident. The chiropractor's range of motionfindings conflict with those of defendants' expert, who found no restriction in range of motion,and thus, raise an issue of fact as to whether plaintiff sustained a significant limitation in use orpermanent consequential limitation of use of her cervical and lumbar spine. Plaintiff's MRIs alsoshowed bulging and herniated discs in the cervical and lumbar spine and the EMG studiesrevealed radiculopathies. Evidence of range of motion limitations, especially when coupled with[*2]positive MRI and EMG test results, are sufficient to defeatsummary judgment (see Wadford vGruz, 35 AD3d 258 [2006]; Brown v Achy, 9 AD3d 30 [2004]).
Plaintiff also submitted sufficient evidence to raise a triable issue of fact as to whether herserious injury was causally related to the accident. In response to the findings of defendants'expert that the disc bulges and/or herniations were consistent with degenerative disease,plaintiff's experts stated, based upon objective medical testing and their physical examinations ofplaintiff, who was 22 years old at the time of the accident and had never sustained any injury toher back either before or after the accident, that the injuries were causally related to the accident(see June v Akhtar, 62 AD3d427 [2009]).
Plaintiff did, however, fail to raise a triable issue of fact with respect to the 90/180-dayprong of Insurance Law § 5102 (d). Plaintiff's self-serving assertions in her affidavit thather ability to do everyday activities has been significantly limited, are insufficient without anyobjective medical evidence to substantiate her claims (see Nelson v Distant, 308 AD2d338, 340 [2003]). Furthermore, plaintiff testified that she returned to work within two or threedays of the accident (see Ronda vFriendly Baptist Church, 52 AD3d 440, 441 [2008]).
Having concluded that a portion of plaintiff's claims should be reinstated, the issues ofwhether the action should be dismissed as against Salem pursuant to the Graves Amendment (49USC § 30106), and whether plaintiff's cross motion to amend the complaint to assert anegligent entrustment claim as against Salem, become viable. Since the motion court did notmake a determination on these issues, they are remanded to that court for a determination in thefirst instance. Concur—Mazzarelli, J.P., Saxe, Moskowitz, Renwick and Richter, JJ.