| Bonilla v Abdullah |
| 2011 NY Slip Op 08832 [90 AD3d 466] |
| Dcmbr 8, 2011 |
| Appellate Division, First Department |
| Mayra Bonilla et al., Respondents, v Mohammed Abdullahet al., Appellants. |
—[*1] Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for Errola Gooden,appellant. Belovin & Franzblau, LLP, Bronx (David A. Karlin of counsel), for respondents.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered October 25, 2010,which, to the extent appealed from as limited by the briefs, denied defendants' motions forsummary judgment dismissing the complaint based on the failure to establish a serious injurywithin the meaning of Insurance Law § 5102 (d), granted plaintiffs' cross motion forsummary judgment on the issue of liability, and denied defendant Gooden's cross motion forsummary judgment dismissing the complaint based on the issue of liability, unanimouslymodified, on the law, to grant defendants' motions to the extent of dismissing plaintiffs'90/180-day claim, and to deny plaintiffs' cross motion, and otherwise affirmed, without costs.
The record demonstrates that, as defendant Gooden was operating his SUV on SeventhAvenue South, a taxi owned by defendant Solomon and operated by defendant Abdullah cut infront of him from his left, turned right, and caused a collision between the two vehicles at theintersection of Seventh Avenue South and Charles Street. The taxi continued on toward CharlesStreet, where plaintiffs Mayra and Michael Bonilla were crossing. Michael "yanked" Mayra outof the way of the oncoming cab, which caused her to trip on the sidewalk.
Plaintiffs' cross motion should have been denied, since issues of fact exist as to proximatecausation. Defendant Gooden, however, failed to make a prima facie showing of entitlement tojudgment as a matter of law. Indeed, his deposition testimony that he saw the taxi five to sixseconds before impact raises issues of fact as to whether he was confronted with an emergencyand acted prudently under the circumstances (see Dayong Liu v Peng Cheng, 82 AD3d 405, 405-406 [2011];Trevino v Castro, 256 AD2d 6 [1998]).
Defendants made a prima facie showing that the injured plaintiff did not sustain a seriousinjury as a result of the accident. Indeed, defendants submitted the affirmed reports of anorthopedist finding normal ranges of motion in plaintiff's knees and lumbar spine and concludingthat any injuries had resolved (Dennis vNew York City Tr. Auth., 84 AD3d 579 [2011]). Defendants also submitted theaffirmed report of their radiologist who, upon reviewing plaintiff's MRI film, opined that therewas preexisting degenerative disc disease in the lumber spine (Colon [*2]vBernabe, 65 AD3d 969, 970 [2009]).
In opposition, plaintiffs raised triable issues of fact as to whether the injured plaintiffsustained a significant or permanent consequential limitation of use of her knees and lumbarspine (see Insurance Law § 5102 [d]). The affidavit of plaintiff's treatingorthopedist contains objective, quantitative evidence of range-of-motion deficits in the lumbarspine and knees based on testing performed both immediately and approximately two years afterthe accident. These range-of-motion findings conflict with those of defendants' experts, whofound no restrictions in range of motion. Evidence of range-of-motion limitations, especiallywhen coupled with positive MRI test results, are sufficient to defeat summary judgment (seeColon, 65 AD3d at 970). Additionally, plaintiff's expert adequately addressed defendants'claims of preexisting degenerative disease by attributing the cause of plaintiff's injuries to theaccident and noting that she was asymptomatic before the accident (see Byong Yol Yi v Canela, 70 AD3d584, 584-585 [2010]). Plaintiff adequately explained the gap in treatment by asserting in heraffidavit that she stopped receiving treatment for her injuries when her no-fault insurancebenefits were cut off (see Browne vCovington, 82 AD3d 406, 407 [2011]).
Plaintiffs' 90/180-day claim, however, should have been dismissed. The injured plaintiffalleged in her bill of particulars that she was confined to bed and home for only a few weeksimmediately following the accident. Although she alleged that she was confined to bed for twoweeks and home for two months immediately following her surgery, she asserted in her affidavitthat she was home for only two weeks after her surgery (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522, 523[2010]). Concur—Andrias, J.P., Saxe, Sweeny, Acosta and Manzanet-Daniels, JJ.