| Lavali v Lavali |
| 2011 NY Slip Op 08298 [89 AD3d 574] |
| November 17, 2011 |
| Appellate Division, First Department |
| Jane Lavali, Respondent, v Janet A. Lavali et al.,Appellants. |
—[*1] Majorie E. Bornes, New York, for Roman Car Service, Inc., and Francisco R. Perez,appellants. Raphaelson & Levine Law Firm, P.C., New York (Jason Krakower of counsel), forrespondent.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered November 5, 2010,insofar as it denied the branches of defendants' motion and cross motion for summary judgmentdismissing plaintiff's claim that she sustained serious injuries under the "significant limitation ofuse" category of Insurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants made a prima facie showing that plaintiff did not sustain a serious injury as aresult of the subject accident by submitting the affirmed reports of their orthopedist andneurologist, who both examined plaintiff over three years after the accident, and noted full rangeof motion in the cervical spine, lumbar spine, and right shoulder (see Thompson v Abbasi, 15 AD3d95, 96 [2005]). The affirmed MRI reports of the two radiologists who found milddegenerative changes and absence of disc herniations or bulges establishes prima facie lack ofcausation (see Depena v Sylla, 63AD3d 504 [2009], lv denied 13 NY3d 706 [2009]).
In opposition, plaintiff's chiropractor's affidavit, together with the affirmed reports of herneurologist and physiatrists, was sufficient to raise a triable issue of fact as to injury to thecervical and lumbar spine. Plaintiff's chiropractor relied, inter alia, on contemporaneous andcurrent range of motion tests, positive results on straight leg and other objective tests, andobservation of spasms, as well as affirmed and unaffirmed medical reports (see Rubencamp v Arrow ExterminatingCo., Inc., 79 AD3d 509 [2010]; Adetunji v U-Haul Co. of Wis., 250 AD2d 483,483 [1998]). On the issue of causation, plaintiff's expert's conclusion that plaintiff sustainedserious injuries as a result of the accident is based on a physical examination of the previouslyasymptomatic plaintiff just days after the accident and a review of her medical records whichacknowledged mild disc degeneration, and thus is sufficient to raise an issue of fact (Yuen v Arka Memory Cab Corp., 80AD3d 481 [2011]; see also Peluso vJanice Taxi Co., Inc., 77 AD3d 491, 493 [2010]). Concur—Mazzarelli, J.P.,Sweeny, Moskowitz, Acosta and Abdus-Salaam, JJ.