| Jacobs v Rolon |
| 2010 NY Slip Op 06689 [76 AD3d 905] |
| September 23, 2010 |
| Appellate Division, First Department |
| Esther Jacobs, Appellant, v Hector D. Rolon, Respondent.(And a Third-Party Action.) |
—[*1] Kay & Gray, Westbury (Rodney A. Mohammed of counsel), for respondent.
Order, Supreme Court, Bronx County (Cynthia S. Kern, J.), entered June 17, 2009, whichgranted defendant's motion for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, the motion denied, and the complaint reinstated.
Defendant met his initial burden of proof on the motion. He established that plaintiff'sinjuries were not, as a matter of law, serious (Insurance Law § 5102 [d]) through the reportof an orthopedic surgeon, who determined that, 2½ years after the subject motor vehicleaccident, plaintiff demonstrated only an insignificant reduction in range of motion in her lumbarspine and exhibited full range of motion in all other areas. Defendant also demonstrated thatplaintiff's injuries were not causally related to the accident through the report of a radiologist,who opined that any reduction in range of motion in her lumbar spine was attributable todegenerative disc disease (see Tubermanv Hall, 61 AD3d 441 [2009]; Santos v Taveras, 55 AD3d 405, 405 [2008]; Shinn v Catanzaro, 1 AD3d 195,197 [2003]).
Plaintiff, however, raised issues of fact as to whether her injuries met the statutory definitionof "serious" and were causally related to the accident sufficiently to defeat summary judgment.Plaintiff's treating physician determined, based on objective, quantitative tests, that plaintiff hadsignificant limitations in range of motion in both her lumbar and cervical spine, bothimmediately following the accident and three years later (see Toure v Avis Rent A CarSys., 98 NY2d 345, 350 [2002]), and that her impairments were not degenerative in naturebut were causally related to the accident. These findings clearly conflict with those of defendants'experts (see e.g. Vera v Islam, 70AD3d 525, 525 [2010]; Colon vBernabe, 65 AD3d 969, 970 [2009]). Plaintiff's treating physician's conclusion as tocausation was no more speculative than that of defendant's radiologist, given that plaintiff had noprior history or ever exhibited any symptoms of degenerative disc disease or any other condition,and the report of the radiologist who took the MRI films contemporaneously with the accidentmade no mention of degeneration (seeHarris v Boudart, 70 AD3d 643, 644-645 [2010]; Linton v Nawaz, 62 AD3d 434, 439-441 [2009], affd 14NY3d 821 [2010]). Thus, contrary to defendant's contention, plaintiff's physician adequatelyrebutted defendant's radiologist's claim of degenerative disc disease as the cause of plaintiff's[*2]injuries.
Finally, plaintiff adequately explained her two-year gap in treatment through her affidavit inwhich she averred that she continued physical therapy with her treating physician until herno-fault benefits ceased, that she was told that her health insurance would not cover continuedtreatment, and that she could not afford to pay for treatment out-of-pocket (see Perez v Vasquez, 71 AD3d531, 532 [2010]; Wadford vGruz, 35 AD3d 258, 259 [2006]). Concur—Saxe, J.P., Moskowitz, Freedman andRomÁn, JJ.