| Torain v Bah |
| 2010 NY Slip Op 08779 [78 AD3d 588] |
| November 30, 2010 |
| Appellate Division, First Department |
| Barbara Torain, Appellant, v Amadou Bah, Also Known asMamadou Bobo Bah, Respondent. |
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Order, Supreme Court, Bronx County (Nelson S. RomÁn, J.), entered June 11, 2009,which granted defendant's motion for summary judgment dismissing the complaint on the ground thatplaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d), unanimouslymodified, on the law, to the extent of denying the motion in part and reinstating plaintiff's claims that shesustained a significant limitation of use of a body function or system and/or a permanent consequentiallimitation of use of a body organ or member, and otherwise affirmed, without costs.
Defendant established a prima facie entitlement to summary judgment by submitting the affirmedreports of an orthopedic surgeon and a neurologist, who, after conducting independent examinations ofplaintiff and detailing the objective tests performed, concluded that plaintiff had full range of motion inher neck, back and shoulder (see ZhijianYang v Alston, 73 AD3d 562 [2010]). Defendant also submitted the affirmed report of aradiologist, who, upon reviewing plaintiff's MRI films, opined that plaintiff's complaints of pain wereattributable to degenerative changes in her lumbar and cervical spine.
In opposition, plaintiff raised triable issues as to whether she sustained a serious injury under thecategories of significant limitation of use of a body function or system and/or the permanentconsequential limitation of use of a body organ or member (Insurance Law § 5102 [d]).Plaintiff's orthopedic surgeon, who examined plaintiff and reviewed the MRI films of her cervical andlumbar spine taken approximately one month after the accident, opined that the cervical herniationswere caused by the trauma of the accident, inasmuch as the nucleus pulposus was projected outward ina focalized way. The conflicting expert opinions as to the cause of plaintiff's cervical herniations raisesan issue of fact for trial (see e.g. Jacobs vRolon, 76 AD3d 905 [2010]). Triable issues are also raised by evidence, including the MRIof plaintiff's lumbar spine showing two disc bulges, that plaintiff was asymptomatic prior to the accident,that the results of the objective tests performed by plaintiff's experts indicated universal limitations inrange of motion, and that such experts opined that the cause of plaintiff's lumbar injuries were [*2]related to the accident (see id.; Mercado-Arif v Garcia, 74 AD3d 446[2010]).
Dismissal of plaintiff's claim of serious injury under the 90/180-day category was appropriateinasmuch as the record establishes that plaintiff continued to work following the accident, albeit in adiminished capacity, and there was no medical determination that she was unable to engage insubstantially all her material and customary daily activities for 90 out of the first 180 days after theaccident (see e.g. Blake v PortexitCorp., 69 AD3d 426 [2010]). Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Renwickand DeGrasse, JJ.