| Byong Yol Yi v Canela |
| 2010 NY Slip Op 01580 [70 AD3d 584] |
| February 25, 2010 |
| Appellate Division, First Department |
| Byong Yol Yi, Respondent, v Mateo Canela,Appellant. |
—[*1] Kerner & Kerner, New York (Kenneth T. Kerner of counsel), for respondent.
Order, Supreme Court, Bronx County (Lucy Billings, J.), entered on or about July 10, 2009,which denied defendant's motion for summary judgment dismissing the complaint for lack ofserious injury, unanimously modified, on the law, to dismiss the 90/180-day claim and the claimfor permanent loss of use, and otherwise affirmed, without costs.
Defendant met his initial burden of proof, even though only one of his doctors addressedplaintiff's MRIs and neither of them addressed the reports of plaintiff's chiropractor (see DeJesus v Paulino, 61 AD3d605, 607 [2009]; see also Chintamv Fenelus, 65 AD3d 946, 947 [2009]). Defendant made a prima facie showing ofentitlement to summary judgment on plaintiff's 90/180-day claim by pointing to plaintiff'sdeposition testimony that he was not confined to bed and home and returned to work within thefirst 90 days following his accident (seee.g. Alloway v Rodriguez, 61 AD3d 591, 592 [2009]).
In opposition, plaintiff raised a triable issue of fact except as to his 90/180-day andpermanent loss claims. Although one of defendant's doctors opined that the changes shown inplaintiff's cervical and lumbar discs were age related, plaintiff's doctor opined that there was acausal relationship between the subject accident and plaintiff's neck and back pain (see Colon v Bernabe, 65 AD3d969, 970 [2009]; Norfleet v DemeEnter., Inc., 58 AD3d 499, 500 [2009]). Plaintiff did not rely solely on MRIs showingbulging and herniated discs, as his doctor also performed straight-leg raising tests, whichconstitute "objective evidence of serious injury" (Brown v Achy, 9 AD3d 30, 32 [2004]). While plaintiff's doctor didnot quantify all the limitations in plaintiff's ranges of motion, his report was sufficient on aqualitative basis (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]). Theaffirmed report of plaintiff's doctor was admissible, even though it relied in part on the unswornreports of another doctor who read plaintiff's MRIs (see Rivera v Super Star Leasing, Inc., 57 AD3d 288 [2008]; see also Pommells v Perez, 4 NY3d566, 577 n 5 [2005]).
Defendant's arguments that plaintiff's doctor did not show limitations in plaintiff's spinecontemporaneous with the 2006 accident and that there was a gap in treatment are unpreserved,and we decline to consider them (see e.g. Chintam, 65 AD3d at 947; Alicea v Troy Trans, Inc., 60 AD3d521, 521-522 [2009]).[*2]
Plaintiff failed to raise a triable issue of fact as to his90/180-day claim. He testified that he was not confined to bed and home and that he returned towork within the first month after the accident (see Colon, 65 AD3d at 971;Alicea, 60 AD3d at 522). He also failed to raise a triable issue of fact as to his claim thathe sustained a permanent loss of use of a body organ, member, function or system. Such lossmust be total (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]), and the reportof plaintiff's doctor showed that plaintiff sustained limitations, but not a total loss of use.
We have considered defendant's remaining contentions and find them unavailing.Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Acosta and Abdus-Salaam, JJ.