| Graves v L&N Car Serv. |
| 2011 NY Slip Op 06413 [87 AD3d 878] |
| September 8, 2011 |
| Appellate Division, First Department |
| Lorraine Graves, Respondent, v L&N Car Service et al.,Appellants. |
—[*1] Michael D. Hassin, Rockville Centre (Randall A. Sorscher of counsel), forrespondent.
Order, Supreme Court, Bronx County (Mary Brigantti-Hughes, J.), entered July 19, 2010,which, upon reargument, denied defendants' motion for summary judgment dismissing thecomplaint on the threshold issue of serious injury, reversed, on the law, without costs, and themotion granted. The Clerk is directed to enter judgment in favor of defendants dismissing thecomplaint.
This is an action seeking damages for "serious injury" within the meaning of Insurance Law§ 5102 (d) allegedly resulting from a motor vehicle accident. In support of their motion forsummary judgment, defendants submitted affirmations of a radiologist, Dr. Jessica Berkowitz,attesting that she examined MRIs of plaintiff's cervical spine, lumbar spine and right shoulder,and found no evidence of a causal relationship between plaintiff's injuries and the subjectaccident. Rather, for reasons Dr. Berkowitz explained with particularity in her affirmations, theinjuries appeared to result from chronic and degenerative conditions and were not the type ofinjuries that are caused by trauma. The radiology reports submitted by plaintiff, by contrast, saidnothing about the etiology of the injuries, and the report of plaintiff's chiropractor contained onlya conclusory assertion that there was a causal connection between the injuries and the accident.On this record, defendants established a prima facie case for dismissal of the complaint insofar asit was based on an alleged permanent, consequential and significant serious injury, and plaintifffailed to meet her burden to come forward with competent medical evidence specifically refutingthe claimed lack of causal connection to the accident (see Pommells v Perez, 4 NY3d 566, 579-580 [2005]; Charley v Goss, 54 AD3d 569,571-572 [2008], affd 12 NY3d 750 [2009]). Moreover, plaintiff's admissions in her billof particulars and deposition testimony that she missed only three weeks of work as a result ofthe accident established as a matter of law that she did not suffer a serious injury within themeaning of the 90/180-day prong of Insurance Law § 5102 (d). Accordingly, defendants'summary judgment motion should have been granted. Concur—Andrias, J.P., Saxe,Friedman and Richter, JJ.
Moskowitz, J., dissents in part in a memorandum as follows: I agree with the majority thatplaintiff has not raised an issue of fact with respect to her [*2]90/180-day claim. However, I disagree with the dismissal of thecomplaint under the permanent, consequential and significant limitation categories of seriousinjury under Insurance Law § 5102 (d).
While defendants' experts concluded that plaintiff had normal range of motion in hershoulder and cervical and lumbar spine, plaintiff raised an issue of fact through the affidavit ofher chiropractor, Dr. Rosenfeld, who first examined plaintiff a week after the accident and againin October 2009. Specifically, Dr. Rosenfeld opined that plaintiff did not have normal range ofmotion and had "sustained a permanent disability as a result of the bulging and herniated discs inher cervical spine and lumbar spine." He concluded that "based upon this patient[']s history,treatment, physical examination, range of motion testing, and review of the MRI and EMG testresults," these injuries "are the direct result of the automobile accident of July 23, 2007."
Moreover, Dr. Shapiro, a radiologist, attested to MRI studies (upon which Dr. Rosenfeldrelied) that revealed, inter alia, "focal disc bulge at C4-5[,] right paracentral herniation at C5-6,""right foraminal herniation at L3-4, [and] loss of signal and central herniation at L4-5 withextension of disc into the neural foramen bilaterally." Accordingly, this case involves contestedissues of fact inappropriate for summary adjudication (see De La Cruz v Hernandez, 84 AD3d 652 [2011]; see also Linton v Nawaz, 62 AD3d434, 440-441 [2009], affd 14 NY3d 821 [2010]).