| De La Cruz v Hernandez |
| 2011 NY Slip Op 04377 [84 AD3d 652] |
| May 26, 2011 |
| Appellate Division, First Department |
| Katherine De La Cruz et al., Appellants, v JoaquinHernandez, Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about July 20,2010, which granted defendant's motion for summary judgment dismissing the complaint,unanimously modified, on the law, to reinstate plaintiffs' threshold claims with respect to the"permanent consequential limitation of use" and "significant limitation of use" categories ofserious injury within the meaning of Insurance Law § 5102 (d), and otherwise affirmed,without costs.
Plaintiffs allege that they sustained serious injuries to their necks and lower backs as a resultof being rear-ended by defendant in June 2007. Defendant made a prima facie showing thatplaintiffs' injuries were not permanent or significant by submitting the affirmed reports of aneurologist who, based upon examinations of plaintiffs in October and November 2009, found noneurological disabilities and full ranges of motion, and concluded that all cervical andlumbar-sacral strains/sprains had been resolved (see Porter v Bajana, 82 AD3d 488 [2011]; Amamedi v Archibala, 70 AD3d449, 449 [2010], lv denied 15 NY3d 713 [2010]; Ayala v Douglas, 57 AD3d 266 [2008]). However, the swornreports of plaintiffs' treating chiropractor setting forth treatment from the time of the accidentuntil early 2010, including the results of range of motion tests performed a few days after theaccident and then over 3½ years later, raise triable issues of fact as to the extent ofplaintiffs' injuries and causation (seeTsamos v Diaz, 81 AD3d 546 [2011]; McClelland v Estevez, 77 AD3d 403, 404 [2010]; Colon v Bernabe, 65 AD3d 969,970 [2009]).
The conclusion of defendant's radiologist that plaintiffs' injuries were due to degenerativechanges, without further elaboration, is insufficient to satisfy defendant's prima facie burden as tocausation, given that plaintiffs were only 31 and 26 years old at the time of the accident and whenthe MRIs were taken (see June vAkhtar, 62 AD3d 427, 428 [2009]). In any event, plaintiffs' chiropractor's attribution ofthe injuries to the accident raised a factual issue (see Linton v Nawaz, 62 AD3d 434, 440-441 [2009], affd14 NY3d 821, 822 [2010]; Yuen v ArkaMemory Cab Corp., 80 AD3d 481, 482 [2011]; Malloy v Matute, 79 AD3d 584 [2010]).
Defendant made a prima facie showing of absence of a 90/180-day category injury underInsurance Law § 5102 (d) by pointing to plaintiffs' deposition testimony that they bothwere [*2]confined to bed and home for less than a month.Plaintiffs failed to raise an issue of fact to defeat summary judgment. Their affidavits averringthat they were confined to bed and home for about 5½ months, submitted in opposition todefendant's summary judgment motion, "can only be considered to have been tailored to avoidthe consequences of [their] earlier testimony" (Phillips v Bronx Lebanon Hosp., 268AD2d 318, 320 [2000]). Their testimony that they were unable to perform their customary dailyactivities for at least six months after the accident is not supported by objective medical evidence(see Gaddy v Eyler, 79 NY2d 955, 958 [1992]; DeJesus v Paulino, 61 AD3d 605, 607 [2009]). Their treatingchiropractor never indicated in his reports that he advised them to remain home or to refrain fromtheir daily activities, and the chiropractor's general statement that plaintiffs were unable toperform "substantially all of the material acts which constituted [their] usual and customary dailyactivities" is insufficient to raise an issue of fact (see Valentin v Pomilla, 59 AD3d 184, 187 [2009]).Concur—Gonzalez, P.J., Mazzarelli, Richter, Manzanet-Daniels and RomÁn, JJ.