| Astudillo v MV Transp., Inc. |
| 2011 NY Slip Op 04613 [84 AD3d 1289] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Alicia Astudillo et al., Appellants, v MV Transportation,Inc., et al., Respondents. |
—[*1] Gallo, Vitucci & Klar, New York, N.Y. (Yolanda L. Ayala of counsel), for respondents MVTransportation, Inc., New York City Transit Authority, and Walkins Ferdinand. Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondentsGowkarran Lallaachan and Asiq Rashid.
In an action to recover damages for personal injuries, the plaintiffs appeal from so much ofan order of the Supreme Court, Queens County (Lane, J.), entered February 23, 2010, as grantedthose branches of the separate motions of the defendants Gowkarran Lallaachan and Asiq Rashid,and the defendants MV Transportation, Inc., New York City Transit Authority, and WalkinsFerdinand which were for summary judgment dismissing the plaintiffs' claims of serious injuryunder the permanent consequential limitation of use and significant limitation of use categoriesof Insurance Law § 5102 (d) insofar as asserted against each of them on the ground that theplaintiffs did not sustain such injuries within the meaning of Insurance Law § 5102 (d) as aresult of the subject accident.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and those branches of the separate motions of the defendants Gowkarran Lallaachan and AsiqRashid, and the defendants MV Transportation, Inc., New York City Transit Authority, andWalkins Ferdinand which were for summary judgment dismissing the plaintiffs' claims of seriousinjury under the permanent consequential limitation of use and significant limitation of usecategories of Insurance Law § 5102 (d) insofar as asserted against each of them on theground that the plaintiffs did not sustain such injuries within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident are denied.
The plaintiffs commenced this action to recover damages for personal injuries that wereallegedly sustained as a result of a motor vehicle accident occurring on September 4, 2006. Thedefendants Gowkarran Lallachan and Asiq Rashid, and the defendants MV Transportation, Inc.,New [*2]York City Transit Authority, and Walkins Ferdinandseparately moved for summary judgment dismissing the complaint insofar as asserted againsteach of them. The Supreme Court, inter alia, granted those branches of the defendants' separatemotions which were for summary judgment dismissing the plaintiffs' claims of serious injuryunder the permanent consequential limitation of use and significant limitation of use categoriesof Insurance Law § 5102 (d) insofar as asserted against each of them.
With regard to the plaintiff Alicia Astudillo, the Supreme Court erred in dismissing herclaims of serious injury under the permanent consequential limitation of use and significantlimitation of use categories of Insurance Law § 5102 (d). In support of the motions, thedefendants relied on submissions including the affirmed medical report of Dr. Barry M.Katzman. Dr. Katzman examined Astudillo on September 19, 2008, more than two yearspostaccident, and found during that examination a significant limitation in cervical spine rotation(see Rhodes v Stoddard, 79 AD3d 997 [2010]; Kharzis v PV Holding Corp., 78AD3d 1122 [2010]). Also submitted on the motions was the affirmed medical report of Dr. RaviTikoo, a neurologist who examined Astudillo on September 17, 2008, more than two yearspostaccident. During that examination, Dr. Tikoo noted that straight leg raising was possible to90 degrees bilaterally in the sitting position, but only to 45 degrees in the standing position.While Dr. Tikoo opined that this was a voluntary limitation without a physiological basis, hefailed to explain or substantiate, with objective medical evidence, the basis for his conclusionthat the limitation was voluntary (see Quiceno v Mendoza, 72 AD3d 669 [2010];Mondert v Iglesia De Dios Pentecostal Cristo Viene, Inc., 69 AD3d 590 [2010]; cf.Perl v Meher, 74 AD3d 930, 930 [2010]).
Thus, the defendants failed to objectively demonstrate that Astudillo did not sustain a seriousinjury under the permanent consequential limitation of use or significant limitation of usecategories of Insurance Law § 5102 (d) (see Aronov v Leybovich, 3 AD3d 511[2004]).
With regard to the plaintiff Nancy Linares, the defendants met their respective prima facieburdens of showing that she did not sustain a serious injury under the permanent consequentiallimitation of use and significant limitation of use categories of Insurance Law § 5102 (d)as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Vilomar v Castillo, 73AD3d 758 [2010]).
However, the Supreme Court erred in finding that Linares failed to raise a triable issue of factin opposition as to whether she sustained a serious injury under the permanent consequentiallimitation of use or significant limitation of use categories (see Noel v Choudhury, 65AD3d 1316 [2009]; Gaviria v Alvardo, 65 AD3d 567, 567-568 [2009]; Gonzalez vMTA Bus Co., 63 AD3d 999 [2009]).
Linares raised a triable issue of fact based on the submissions of Dr. Gregg M. Szerlip, Dr.Harold James, Dr. Richard L. Parker, and Dr. Richard J. Rizzuti. Dr. Szerlip, Linares' treatingosteopath, established via his affirmation that Linares had significant limitations in the cervicalregion of her spine on testing done contemporaneous with the subject accident. He deemed theinjuries to the cervical region of Linares' spine to have been caused by the subject accident.Shortly after the accident, Linares underwent magnetic resonance imaging (hereinafter MRI)scans of, inter alia, the cervical region of her spine, which were read by Dr. Rizzuti, herexamining radiologist. The cervical MRI showed posterior disc herniations at the C3 through C7levels which abutted the anterior aspect of the spinal cord. Dr. Parker, one of Linares' treatingphysicians, examined Linares in July 2007, and found, among other things, significant limitationsin the cervical region of her spine. He reexamined Linares on various dates, and most recently onMay 28, 2009, at which time she still had significant limitations in the cervical region of herspine. Dr. Parker concluded, based on his examinations and review of Linares' MRIs, that theinjuries sustained by Linares, including those to the cervical region of her spine, were significantand permanent in nature and caused by the subject accident. Dr. James, another of Linares'examining physicians, also examined Linares at various points in time, most recently on June 1,2009. During that examination, significant limitations in Linares' cervical region of her spinewere set forth. He concluded, based on his examinations and review of her cervical spine MRI,that the injuries allegedly sustained by Linares, including those to the cervical region of herspine, were permanent and that her limitations were significant. He concluded, inter alia, thatLinares sustained a significant limitation of use of [*3]thecervical region of her spine as a result of the subject accident.
While it is true that the defendants' radiologist, Dr. Audrey Eisenstadt, opined that the MRIscans taken of Linares' cervical spine revealed disc protrusions at C3 through C7, Dr. Eisenstadtwas unable to establish the etiology of that pathology. Therefore, contrary to the Supreme Court'sdetermination, Linares was not required to address the issue of degeneration as it related to hercervical spine. Dr. Szerlip, Dr. James, and Dr. Parker all concluded that the disc herniations at C3through C7 were caused by the subject accident. Linares alleged in her bill of particulars that shesustained herniated discs at C3 through C7 as a result of the subject accident. These herniationsclearly could have caused the limitations in cervical spine range of motion observed by Linares'treating experts.
Based on Linares' submissions, she raised a triable issue of fact as to whether she sustained aserious injury to the cervical region of her spine under the permanent consequential limitation ofuse or the significant limitation of use categories of Insurance Law § 5102 (d) as a result ofthe subject accident.
Accordingly, the Supreme Court erred in granting those branches of the separate motions ofthe defendants Gowkarran Lallaachan and Asiq Rashid, and the defendants MV Transportation,Inc., New York City Transit Authority, and Walkins Ferdinand which were for summaryjudgment dismissing the plaintiffs' claims for serious injury under the permanent consequentiallimitation of use and significant limitation of use categories of Insurance Law § 5102 (d)insofar as asserted against each of them. Angiolillo, J.P., Dickerson, Belen and Sgroi, JJ., concur.