| Paulino v Rodriguez |
| 2012 NY Slip Op 00467 [91 AD3d 559] |
| Jnury 26, 2012 |
| Appellate Division, First Department |
| Krystal Paulino, Appellant, v Christian Rodriguez et al.,Respondents. |
—[*1] Law Offices of Edward M. Eustace, White Plains (Heath A. Bender of counsel), forrespondents.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about July 14,2010, which, insofar as appealed from as limited by the briefs, granted defendants' motion forsummary judgment dismissing the complaint for failure to satisfy the "serious injury" thresholdof Insurance Law § 5102 (d), unanimously modified, on the law, to the extent of denyingthe motion with respect to plaintiff's claim of serious injury to her left shoulder, and otherwiseaffirmed, without costs.
Defendants met their prima facie burden of establishing their entitlement to judgment as amatter of law. Defendants demonstrated that plaintiff did not suffer a serious injury to hercervical spine, lumbar spine, or left shoulder by relying on the medical reports of plaintiff'streating physician which concluded, approximately four months after the accident, that she hadfull ranges of motion and that the MRIs of her cervical and lumbar spine were normal (seeInsurance Law § 5102 [d]; Toure v Avis Rent a Car Sys., 98 NY2d 345, 350[2002]; Newton v Drayton, 305 AD2d 303, 304 [2003]).
In opposition, plaintiff raised an issue of fact regarding the injury to her left shoulder.Plaintiff's subjective complaints of persistent pain were substantiated by objective medicalevidence, including an MRI of her left shoulder, taken approximately two weeks after theaccident, which showed the presence of fluid in her subscapular bursa, consistent with thediagnosis of bursitis. Plaintiff also submitted medical evidence that she tested positive for apainful arc test and an impingement sign test, suffered persistent pain despite conservativetreatment, and continued to exhibit range of motion deficits in her left shoulder even afterundergoing arthroscopic surgery (seeMorris v Cisse, 58 AD3d 455 [2009]; Jones v Norwich City School Dist., 283AD2d 809 [2001]). Since injuries may worsen over time, evidence of contemporaneous range ofmotion limitations is not a prerequisite to plaintiff's claim (Perl v Meher, 18 NY3d 208 [2011]).
Plaintiff submitted no further evidence of serious injury to her spine. However, if the trier offact determines that a serious injury has been sustained, it may award damages for all injuriescausally related to the accident (seeLinton v Nawaz, 14 NY3d 821 [2010]; Rubin v SMS Taxi Corp., 71 AD3d 548, 549-550 [2010]).
Plaintiff did not plead a 90/180-day claim in her bill of particulars. In any event, [*2]defendants established that plaintiff returned to her part-time jobwithin one month after the accident and there was no medical determination that she was unableto engage in substantially all of her material and customary daily activities for 90 out of the first180 days after the accident (see Torain vBah, 78 AD3d 588 [2010]). Concur—Mazzarelli, J.P., Saxe, Catterson, Acostaand RomÁn, JJ.