| Mendez v Mendez |
| 2010 NY Slip Op 02717 [72 AD3d 402] |
| April 1, 2010 |
| Appellate Division, First Department |
| Crismary Mendez, an Infant, by Her Mother and Natural Guardian,Christina Davis, et al., Respondents, v Elido A. Mendez,Appellant. |
—[*1] Law Offices of Mark S. Gray, New York (Peter J. Eliopoulos of counsel), forrespondents.
Order, Supreme Court, New York County (Paul Wooten, J.), entered September 28, 2009,which, to the extent appealed from, denied defendant's motion for summary judgment dismissingthe infant plaintiff's claims of permanent consequential limitation of use of a body organ ormember and significant limitation of use of a body function or system, unanimously affirmed,without costs.
Defendant established prima facie that plaintiff suffered no permanent consequentiallimitation of use of any body organ or member or significant limitation of use of a body functionor system through the affirmed reports of his experts, who examined plaintiff and found fullranges of motion in her cervical and lumbar spine and left ankle, and opined that the sprains inthose areas of her body had resolved and that she had no permanent injury (see Gaddy vEyler, 79 NY2d 955, 956-957 [1992]).
In opposition, plaintiff raised an issue of fact through the affirmations of her experts and herMRI reports. The experts opined that plaintiff suffered permanent injuries that were caused bythe car accident. They provided range of motion measurements as well as the results of othertests they performed, and they examined plaintiff shortly after the accident and again in 2008(see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 353, 355 [2002]). Plaintiff'sexperts also explained any gap in her treatment by stating that she had reached the maximumbenefit possible from the treatment (seePommells v Perez, 4 NY3d 566, 577 [2005]).
The fact that the MRI reports of plaintiff's ankle and cervical spine were unsworn does notavail defendant, since plaintiff's experts related their own observations and findings as to herinjuries and range of motion limitations (see Rosario v Universal Truck & Trailer Serv., 7 AD3d 306, 309[2004]). Moreover, plaintiff's expert neurologist reviewed the MRI films and concurred with thefindings in the reports. Concur—Gonzalez, P.J., Tom, Friedman, McGuire andAbdus-Salaam, JJ.