| Suazo v Brown |
| 2011 NY Slip Op 07505 [88 AD3d 602] |
| October 25, 2011 |
| Appellate Division, First Department |
| Heyddi Suazo, Respondent, v Edwin F. Brown, Defendant,and Mitzy Transportation, Inc., et al., Appellants. |
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Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered April 20, 2011, which, inthis action for personal injuries sustained in a motor vehicle accident, denied the motion ofdefendants Mitzy Transportation, Inc. and Eduardo Chacan for summary judgment dismissing thecomplaint as against them, unanimously affirmed, without costs.
Defendants failed to establish their entitlement to judgment as a matter of law on plaintiff'sclaim to recover for serious injuries under the 90/180-day category of Insurance Law §5102 (d). In support of their motion, defendants submitted, among other things, the reports ofplaintiff's radiologist indicating disc herniations in the cervical and lumbar spines, and meniscaland ligament tears and joint effusion in the right knee. Furthermore, the postoperative report ofplaintiff's surgeon diagnosed plaintiff with meniscal and anterior cruciate ligament tears. Suchmedical evidence, which contradicts defendants' medical evidence, raises issues of fact as to theexistence and causation of plaintiff's injuries (see Martinez v Pioneer Transp. Corp., 48 AD3d 306 [2008]; Zeigler v Ramadhan, 5 AD3d1080, 1081 [2004]). Although defendant's orthopedist concluded that plaintiff's injuries hadresolved based on his examination, there was no opinion offered as to the 90/180-day claim (see Quinones v Ksieniewicz, 80 AD3d506 [2011]; Bejaran v Perez, 78AD3d 571 [2010]).
Accordingly, since defendants did not meet their prima facie burden, the burden of proofnever shifted to plaintiff (see Martinez, 48 AD3d at 307). Concur—Mazzarelli,J.P., Friedman, Catterson, Renwick and Richter, JJ.