| Howard v Robb |
| 2010 NY Slip Op 08264 [78 AD3d 1589] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| Keiko Howard et al., Respondents, v Patrick J. Robb,Appellant. |
—[*1] David J. Pajak, Alden, for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), enteredNovember 12, 2009 in a personal injury action. The order, insofar as appealed from, denied the motionof defendant for summary judgment dismissing any claims of permanent consequential limitation of useof a body organ or member and significant limitation of use of a body function or system.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by KeikoHoward (plaintiff) when the vehicle she was operating was rear-ended by a vehicle operated bydefendant. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Contrary todefendant's contention, we conclude that Supreme Court properly denied the motion with respect tothe serious injury categories of permanent consequential limitation of use and significant limitation of use.Although defendant met his initial burden on the motion, plaintiffs raised triable issues of fact withrespect to the permanent consequential limitation of use and significant limitation of use categories (see Tai Ho Kang v Young Sun Cho, 74AD3d 1328, 1329 [2010]; Levin vKhan, 73 AD3d 991 [2010]; Barryv Valerio, 72 AD3d 996 [2010]).
In opposition to the motion, plaintiffs established that, shortly after the accident, plaintiff was treatedby a chiropractor for pain in her neck and lower back. The chiropractor conducted range ofmotion (ROM) tests and concluded that plaintiff had reduced ROM in every category of flexion,extension and rotation in both her cervical and lumbar areas. The chiropractor also ordered a secondMRI, which showed mild bulging of the cervical discs and a more severe asymmetrical bulge andannular tear of her lumbar disc at L4-5. Plaintiff continued treatments with the chiropractor and hercondition improved somewhat, but another ROM test conducted two years after the accidentestablished that the condition of plaintiff's cervical and lumbar area had further declined. The [*2]chiropractor concluded that plaintiff suffered from a chronic, permanentand disabling injury to her cervical and lumbar spine caused by the accident. Plaintiffs also submitted theaffidavit of a physician who examined plaintiff and reviewed her medical records 2½ years afterthe accident. He concluded that plaintiff suffered from cervical and lumbar disc herniations caused bythe accident. We thus conclude that plaintiffs submitted evidence of contemporaneous and recentfindings with respect to plaintiff's injuries (see Tai Ho Kang, 74 AD3d at 1329; see generally Resek v Morreale, 74 AD3d1043, 1044-1045 [2010]; Vilomar vCastillo, 73 AD3d 758, 759 [2010]; Carrillo v DiPaola, 56 AD3d 712 [2008]; Chinnici v Brown,295 AD2d 465 [2002]), as well as objective and quantitative evidence concerning the limitation of useof plaintiff's cervical and lumbar spine (seegenerally Vargas v Tomorrow Travel & Tour, Inc., 74 AD3d 1626, 1627-1628 [2010]; Charlie v Guerrero, 60 AD3d 570[2009]). Present—Scudder, P.J., Smith, Carni, Lindley and Green, JJ.