| Spencer v Golden Eagle, Inc. |
| 2011 NY Slip Op 02113 [82 AD3d 589] |
| March 24, 2011 |
| Appellate Division, First Department |
| Teresa Spencer et al., Respondents, v Golden Eagle, Inc., etal., Appellants. |
—[*1] Spiegel & Barbato, LLP., Bronx (Brian C. Mardon of counsel), for respondents.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered March 22, 2010, which,in this action seeking damages for personal injuries suffered in a motor vehicle accident, denieddefendants' motion for summary judgment dismissing the complaint, unanimously affirmed,without costs.
Plaintiffs Teresa Spencer and Lisa Spencer, her sister, allege that they sustained "serious"injuries pursuant to Insurance Law § 5102 (d) when their car was struck in the rear by avehicle owned and/or operated by defendants. Specifically, they claim "permanent consequentiallimitation of use of a body organ or member" and/or "significant limitation of use of a bodyfunction or system" and/or nonpermanent "medically determined injury or impairment. . . [preventing them] from performing substantially all of . . . [their]usual and customary daily activities for not less than ninety days during the one hundred eightydays immediately following the occurrence of the injury or impairment."
By notice of motion dated February 17, 2009, defendants moved for summary judgmentdismissing the complaint against them. By decision and order dated March 11, 2010, the trialcourt denied defendants' motion on grounds that, inter alia, defendants' orthopedic expert "failedto disclose the testing methods used to determine that plaintiffs' ranges of motion wereessentially normal." We affirm the motion court's denial of summary judgment, although we doso on different grounds.
To prevail on a motion for summary judgment, the defendant has the initial burden to presentcompetent evidence showing that the plaintiff has not suffered a "serious injury" (seeRodriguez v Goldstein, 182 AD2d 396 [1992]). Such evidence includes " 'affidavits oraffirmations of medical experts who examined the plaintiff and conclude that no objectivemedical findings support the plaintiff's claim' " (Shinn v Catanzaro, 1 AD3d 195, 197 [2003], quoting Grossmanv Wright, 268 AD2d 79, 84 [2000]). Where there is objective proof of injury, the defendantmay meet his burden upon the submission of expert affidavits indicating that plaintiff's injurywas caused by a pre-existing condition and not the accident (Farrington v Go On Time Car Serv., 76 AD3d 818 [2010], citing Pommells v Perez, 4 NY3d 566[2005]).
Once the defendant meets his initial burden, the plaintiff must then demonstrate a triable[*2]issue of fact as to whether he or she sustained a serious injury(see Shinn, 1 AD3d at 197). A plaintiff's expert may provide a qualitativeassessment that has an objective basis and compares plaintiff's limitations with normal functionin the context of the limb or body system's use and purpose, or a quantitative assessment thatassigns a numeric percentage to plaintiff's loss of range of motion (Toure v Avis Rent A CarSys., 98 NY2d 345, 350-351 [2002]). Further, where the defendant has established apre-existing condition, the plaintiff's expert must address causation (see Valentin v Pomilla, 59 AD3d184 [2009]; Style v Joseph, 32AD3d 212, 214 [2006]).
Here, in support of their motion, defendants submitted the affirmations of their orthopedicand radiology experts. Defendants' orthopedic expert concluded that plaintiffs suffered nopermanent injury as a result of the accident. His affirmations are based on MRI reports, plaintiffs'medical records, and October 2008 examinations of the plaintiffs. Initially, we note that contraryto the motion court's finding, defendants' orthopedic expert properly provided objective bases forhis conclusions that plaintiffs' ranges of motion were normal (see DeLeon v Ross, 44 AD3d 545 [2007], citing Toure, 98NY2d at 350). The defendants' orthopedic expert's reports listed the tests he performed andrecorded ranges of motion expressed in numerical degrees and the corresponding normal values.Moreover, defendants' radiology expert opined in his reports that the MRI studies were eithernormal, or indicative of pre-existing and/or degenerative conditions.
In opposition, plaintiffs submitted the affirmations of their treating physician who concludedthat they suffer permanent partial disability as a result of the accident. His conclusions are basedon medical records documenting their continued treatment since the accident including objectivetests that he performed, and diminished ranges of motion that he related to plaintiffs' physicallimitations. Furthermore, the treating physician's conclusions regarding causation are supportedby medical records, wherein he acknowledges some pre-existing injuries but attributes specificother injuries to the accident. Additionally, plaintiffs' contemporaneous MRI reports, in contrastto defendants' expert's reports, do not characterize their injuries as degenerative (see Jacobs v Rolon, 76 AD3d 905[2010]).
Therefore, we find that plaintiffs have raised a triable issue of fact as to serious injury anddefendants' motion for summary judgment was properly denied. Concur—Gonzalez, P.J.,Tom, Catterson, Moskowitz and Richter, JJ.