| Borja v Delarosa |
| 2011 NY Slip Op 08667 [90 AD3d 407] |
| Dcmbr 1, 2011 |
| Appellate Division, First Department |
| Gabriel Borja, Respondent, v Julio E. Delarosa et al.,Appellants. |
—[*1] Paris & Chaikin, PLLC, New York (Jason L. Paris of counsel), for respondent.
Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered June 15, 2010, which,in this action for personal injuries sustained in a motor vehicle accident, denied defendants'motion for summary judgment dismissing the complaint on the ground that plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d), unanimouslymodified, on the law, to grant the motion to the extent of dismissing plaintiff's 90/180-day claimand any claim relating to his shoulder injury, and otherwise affirmed, without costs.
Plaintiff was injured on September 16, 2006 when driving west on 155th Street inManhattan. His vehicle was struck on the driver's side by a truck owned by defendant Benycol.Although defendants submitted sufficient evidence to rebut plaintiff's claim of serious injury tohis shoulder, plaintiff submitted medical evidence in admissible form raising a triable issue offact with respect to permanent limitations of motion of his cervical spine. Plaintiff's treatingphysician, Dr. Javier Chacon, submitted a sworn statement opining that plaintiff sustainedinjuries to his cervical spine that were objective and specifically quantifiable and were caused bythe motor vehicle accident. Dr. Chacon's findings were consistent with those of radiologist Dr.Steven Brownstein's, whose reading of an MRI revealed anterior and posterior protruded discherniations at C6-7. Dr. Arden Kaisman, an anesthesiologist, based on a finding of spasm andlimited range of motion in the cervical spine, concluded that plaintiff suffers from permanentcervical radiculopathy and myofascial pain syndrome. He administered epidural steroidinjections.
On the other hand, defendants' experts, Dr. Kudlip Sachdev, a neurologist, and Dr. Michael J.Katz, an orthopedist, found normal range of motion in the cervical spine. Dr. David L. Milbauer,a radiologist, noted disc bulging in the C6-7 area, but attributed it to degenerative changes.Although Dr. Chacon did not directly address Dr. Milbauer's nonconclusory opinion that thecervical spine injuries were degenerative, he specifically attributed the cause of the injuries to themotor vehicle accident. Thus, his opinion is entitled to equal weight with that of the defenseexperts (Linton v Nawaz, 62 AD3d434, 439 [2009], affd 14 NY3d 821 [2010]; Yuen v Arka Memory Cab Corp., 80 AD3d 481, 482 [2011]).
Plaintiff acknowledged that the pain in his shoulder resulting from the accident had [*2]resolved, and thus any claim relating to the shoulder is dismissed.Similarly, the record also demonstrates that dismissal of plaintiff's claim under the 90/180-daycategory of serious injury is warranted. Plaintiff's bill of particulars and affidavit indicate that hemissed only 40 days of work (seeHospedales v "John Doe", 79 AD3d 536, 537 [2010]). Moreover, plaintiff's reducedwork schedule was insufficient to raise a triable issue of fact on this claim (see Perez v Corr, 84 AD3d 646,647 [2011]). Concur—Tom, J.P., Andrias, Acosta, Freedman and Richter, JJ.