| Singer v Gae Limo Corp. |
| 2012 NY Slip Op 00303 [91 AD3d 526] |
| Jnury 19, 2012 |
| Appellate Division, First Department |
| Nancy Singer, Respondent, v Gae Limo Corp. et al.,Defendants, and Xiu-Bi Chen, Appellant. |
—[*1] Joelson & Rochkind, New York (Geofrey Liu of counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered March 24, 2011,which, insofar as appealed from as limited by the briefs, denied defendant Xiu-Bi Chen's motionfor summary judgment dismissing the complaint alleging serious injuries under the "permanentconsequential limitation of use," "significant limitation of use," and 90/180-day categories ofInsurance Law § 5102 (d), unanimously affirmed, without costs.
On September 15, 2006, plaintiff allegedly sustained serious injuries when the livery cab inwhich she was a passenger collided with another livery cab. After she complained of persistingpain and discomfort emanating from the left buttock area and radiating down her left leg,plaintiff's treating physician confirmed that she sustained left piriformis syndrome and leftsacroiliac joint syndrome, based on diagnostic sacroiliac joint block and piriformis blockinjections. Plaintiff also alleges, inter alia, that she sustained acute thoracic and lumbarsprain/strain as a result of the accident, and that she was confined to bed and home, and wasunable to work, as advised by her doctor, for about four months immediately after the accident.
We affirm the motion court's denial of summary judgment, although on partly differentgrounds. Contrary to the motion court's finding, the reports of defendant's medical experts weresufficient to meet defendant's prima facie burden of showing an absence of serious injury toplaintiff's cervical, thoracic and lumbar spine, left hand/wrist, left knee, and left foot/ankle.Defendant's neurologist and orthopedist set forth the tests they performed and recorded ranges ofmotion expressed in numerical degrees and the corresponding normal values. The objective teststhey performed provided support for their conclusions that the ranges of motion were normal andthat plaintiff suffered no permanent injury to those parts as a result of the accident (see Spencer v Golden Eagle, Inc., 82AD3d 589 [2011]; Glover v CapresContr. Corp., 61 AD3d 549 [2009]; DeLeon v Ross, 44 AD3d 545 [2007], citing Toure v Avis RentA Car Sys., 98 NY2d 345, 350-351 [2002]; cf. Beazer v Webster, 70 AD3d 587 [2010]). In addition,defendant's radiologist opined that the MRI of plaintiff's lumbar spine showed preexistingdegenerative changes. In opposition, plaintiff did not submit any evidence to substantiate herclaim of serious injury to [*2]those body parts, and thereforefailed to raise an issue of fact as to those claims of serious injury.
However, in support of his motion, defendant failed to submit any medical evidenceaddressing plaintiff's claim of serious injury based on piriformis syndrome and left sacroiliacjoint syndrome in her pelvis/left buttock. Further, since defendant's experts examined her morethan three years after the accident and did not address those claimed injuries, and defendantsubmitted no other evidence concerning plaintiff's condition in the 180 days following theaccident, defendant also failed to meet his burden on plaintiff's 90/180-day claim (see e.g. Quinones v Ksieniewicz, 80AD3d 506, 506-507 [2011]; Feasterv Boulabat, 77 AD3d 440, 441 [2010]). Since defendant did not meet his prima facieburden as to those claims, the burden did not shift to plaintiff and it is unnecessary to considerthe sufficiency of her evidence in opposition (see Reyes v Diaz, 82 AD3d 484 [2011]; Shumway v Bungeroth, 58 AD3d431 [2009]). If the trier of fact determines that plaintiff sustained a serious injury, it mayaward damages for all injuries causally related to the accident, even those that do not meet thethreshold (see Linton v Nawaz, 14NY3d 821 [2010]; Rubin v SMSTaxi Corp., 71 AD3d 548, 549 [2010]). Concur—Andrias, J.P., Sweeny,Moskowitz, Renwick and Freedman, JJ.