| Fuentes v Sanchez |
| 2012 NY Slip Op 00011 [91 AD3d 418] |
| Jnury 3, 2012 |
| Appellate Division, First Department |
| Irma Fuentes et al., Respondents, v Segundo Sanchez et al.,Appellants. |
—[*1] Arce Law Office, PLLC, Bronx (Yolanda Castro-Arce of counsel), for respondents.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered April 13, 2011, which, tothe extent appealed from, denied defendants' motion for summary judgment dismissing thecomplaint alleging that plaintiff sustained serious injuries under Insurance Law § 5102 (d),unanimously affirmed, without costs.
On December 16, 2008, then-81-year-old plaintiff Irma Fuentes was driving through anintersection when defendants' car allegedly ran a red light and struck her. Plaintiffs commencedthis action, alleging injuries to plaintiff's cervical spine, lumbar spine, and left knee under the"permanent consequential limitation of use," "significant limitation of use," and 90/180-daycategories of Insurance Law § 5102 (d).
Defendants met their initial burden by submitting the affirmed reports of their orthopedistand neurologist finding normal ranges of motion in the cervical and lumbosacral spine and theleft knee, and concluding that symptoms in those parts of the body had resolved, as well as theMRI reports of their neuroradiologist concluding that the MRI films of the cervical spine,lumbosacral spine, and left knee revealed degenerative changes and no evidence of posttraumaticinjuries related to the accident (seeTorres v Triboro Servs., Inc., 83 AD3d 563 [2011]). Contrary to plaintiffs' contention,the failure of defendants' experts to review plaintiff's medical records in preparing their reportsdoes not render the reports insufficient, as the experts detailed the specific objective tests theyused in their personal examination of plaintiff, which revealed full range of motion, anddefendants' radiologist found, upon review of plaintiff's MRI films, no evidence of traumaticinjury (see Canelo v Genolg Tr.,Inc., 82 AD3d 584 [2011]; DeJesus v Paulino, 61 AD3d 605, 607 [2009]).
In response, plaintiffs submitted the affirmations of plaintiff's neurologist and orthopedist,who both found limitations in the range of motion of plaintiff's cervical and lumbar spine shortlyafter the accident and 1½ year later. Plaintiffs also submitted the MRI reports of plaintiff'sradiologist noting disc bulges and herniations in both the cervical and lumbar spine. Thisevidence raises triable issues of fact as to whether plaintiff sustained a "significant limitation ofuse" and "permanent consequential limitation of use" of the cervical and lumbar spine (seePerl v Meher, 18 NY3d 208 [2011]; Toure v Avis Rent A Car [*2]Sys., 98 NY2d 345 [2002]). Although plaintiffs submitted noevidence quantifying the range of motion limitation in the left knee, the MRI finding of ameniscus tear in the knee, the orthopedist's observations of progressively worsening kneesymptoms throughout the course of treatment, plaintiff's eventual need for viscosupplementationinjections to the knee, and the orthopedist's conclusion that she would not be able to return to herjob as a home attendant, sufficiently raise a triable issue of fact as to a significant and permanentconsequential limitation of use of the knee (see Toure, 98 NY2d 345 [2002]).
As to causation, plaintiffs submitted plaintiff's radiologist's reports finding disc bulges andherniations in the cervical and lumbar spine, and joint effusion and a meniscus tear in the leftknee, as well as the radiologist's affirmation that the conditions were causally connected totrauma sustained during the accident. Plaintiff's treating physicians also concluded that plaintiff'sneck and back injuries were causally related to the accident. Further, plaintiffs adequatelyaddressed defendants' evidence of degenerative conditions in the neck and back and apre-existing neck condition resulting from a prior 2003 accident. Plaintiff's neurologist averred inhis affirmation that age-related stenosis is usually asymptomatic in the cervical spine, and that,although lumbar stenosis could produce pain, the pain would emerge gradually and not assuddenly and severely as the pain that plaintiff had been experiencing. The neurologist alsoexplained that, given that plaintiff was asymptomatic and working as a home attendant withoutdifficulty for five years following the 2003 accident, her current complaints and measurablelimitations "could only be due to the [subject] accident." Additionally, plaintiff's radiologist'sfinding of joint effusion and a tear in the posterior horn of the medial meniscus, conflicts withdefendants' neuroradiologist's finding of a degenerative condition in the posterior horn of themedial meniscus. Because plaintiffs' evidence negates a finding as a matter of law that plaintiff'sdegenerative and pre-existing conditions were the sole cause of the injuries, plaintiffs raised anissue of fact as to causation (see Perl, 18 NY3d 208 [2011]; Jacobs v Rolon, 76 AD3d 905[2010]).
Defendants met their initial burden of showing prima facie that plaintiff did not sustain a90/180-day injury by submitting plaintiffs' bill of particulars stating that she was confined to bedand home for three days after the accident (see Hospedales v "John Doe", 79 AD3d 536 [2010]). Plaintiffsraised a triable issue of fact by submitting the disability notices issued by plaintiff's treatingphysicians noting her inability to resume her job duties as of December 24, 2008 until at leastMay 6, 2009 (see Escobar vGuzman, 60 AD3d 421 [2009]). Concur—Gonzalez, P.J., Andrias, DeGrasse,Richter and Abdus-Salaam, JJ.