| Yuen v Arka Memory Cab Corp. |
| 2011 NY Slip Op 00163 [80 AD3d 481] |
| January 13, 2011 |
| Appellate Division, First Department |
| Lee Yuen, Respondent, v Arka Memory Cab Corp. et al.,Appellants. |
—[*1] Ateshoglou & Aiello, P.C., New York (Steven D. Ateshoglou of counsel), forrespondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered April 29, 2010, which,insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgmentdismissing plaintiff's claim that he sustained a serious injury as defined by Insurance Law § 5102(d) to include a significant limitation of use of a body function or system and/or a permanentconsequential limitation of use of a body organ or member, unanimously affirmed, without costs.
Contrary to defendants' contention, plaintiff submitted medical evidence in admissible form,including medical affirmations of two doctors who submitted underlying reports, MRI films, notes andrecords (see Thompson v Abbasi, 15AD3d 95, 97 [2005]; Gonzalez v Vasquez, 301 AD2d 438 [2003]). Moreover, plaintiff'streating physician and medical expert, Andrew Brown, M.D., averred that he personally reviewed theMRI films and reports, rendering them admissible (see Thompson, 15 AD3d at 97; seeDioguardi v Weiner, 288 AD2d 253 [2001]). Plaintiff also presented evidence that his injuries,consisting of a rotator cuff tear in the left shoulder and cervical disc herniations, with objective,quantified range of motion limitations and continuing pain years after the accident, constitute serious,permanent injuries (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). Plaintiffadequately explained a 10-month gap in treatment during which time he was being treated for anunrelated condition (see Jacobs v Rolon,76 AD3d 905 [2010]).
Defendant presented the expert opinions of a radiologist who found degenerative changes in thespine and of an orthopedist, Gregory Montalbano, M.D., who opined that the alleged injuries toplaintiff's cervical spine were degenerative in origin and that the injury to the left shoulder rotator cuffwas degenerative and congenital in origin, and could be related to his work as a bus driver and to hisobesity.
In opposition, plaintiff presented the expert medical report and opinion of Dr. Brown, who opinedthat plaintiff's injuries were causally related to the accident, because he was asymptomatic before theaccident and the accident involved sufficient force to cause the types of injuries sustained. The recordalso contains the unsworn postoperative report of the surgeon who operated on plaintiff's shoulder, whoconfirmed that plaintiff had a rotator cuff tear which [*2]was consistentwith the accident. Although plaintiff's expert did not expressly address Dr. Montalbano's nonconclusoryopinion that the injuries were degenerative and/or congenital in origin, "by attributing the injuries to adifferent, yet altogether equally plausible, cause, that is, the accident," he rejected the defense expert'sopinion and his opinion was entitled to equal weight (Linton v Nawaz, 62 AD3d 434 [2009], affd 14 NY3d 821, 822[2010]; see also Peluso v Janice Taxi Co.,Inc., 77 AD3d 491 [2010]; Jacobs, 76 AD3d 905; Torain v Bah, 78 AD3d 588 [2010];Feaster v Boulabat, 77 AD3d 440[2010]; contra Farrington v Go On Time CarServ., 76 AD3d 818 [2010]; Lopezv American United Transp., Inc., 66 AD3d 407 [2009]). Concur—Tom, J.P.,Sweeny, Freedman, Richter and Abdus-Salaam, JJ. [Prior Case History: 2010 NY Slip Op31042(U).]