| Williams v Tatham |
| 2012 NY Slip Op 00900 [92 AD3d 472] |
| February 9, 2012 |
| Appellate Division, First Department |
| Sharon Gray Williams, Appellant, v Karl W. Tatham et al.,Respondents. |
—[*1] Richard T. Lau & Associates, Jericho (Keith E. Ford of counsel), for Karl W. Tatham,respondent. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forCeesay Alagy, respondent.
Appeal from amended order, Supreme Court, Bronx County (Norma Ruiz, J.), enteredOctober 19, 2010, which, to the extent appealed from as limited by the briefs, inter alia, granteddefendants' motions for summary judgment dismissing the complaint, deemed an appeal fromjudgment, same court and Justice, entered November 22, 2010 (CPLR 5501 [c]), dismissing thecomplaint, and, as so considered, unanimously reversed, on the law, without costs, and thecomplaint reinstated. Appeal from the order, same court and Justice, entered May 5, 2011,unanimously dismissed, without costs, as taken from a nonappealable paper, and to the extent itdenied renewal, dismissed, without costs, as academic.
Defendants established their prima facie entitlement to judgment as a matter of law, as toboth the permanent and nonpermanent categories of serious injury, by submitting evidence, in theform of an affirmed report from a radiologist, demonstrating that plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) since the MRI filmsrevealed evidence of degeneration in plaintiff's back and right shoulder that preexisted theaccident (see Linton v Nawaz, 62AD3d 434, 438 [2009], affd 14 NY3d 821 [2010]; Guadalupe v Blondie Limo, Inc., 43AD3d 669 [2007]; Yagi vCorbin, 44 AD3d 440 [2007]; Thompson v Abbasi, 15 AD3d 95, 96 [2005]).
In opposition, however, plaintiff submitted an affidavit from her treating chiropractor whomedically examined her several times, employed objective range of motion testing, foundrestricted range of motion in plaintiff's lumbar and cervical spine, and thereafter concluded that"as a direct result of the accident [plaintiff] sustained permanent injury to her spine, muscular,and neurological systems." Accordingly, with respect to the permanent categories of seriousinjury alleged, plaintiff, by submitting expert opinion "attributing the injuries to a different, yetaltogether equally plausible, cause, that is, the accident" (Linton at 439-440; Yuen v Arka Memory Cab Corp., 80AD3d 481, 482 [2011]), raised an issue of fact with respect to whether she sustained aserious injury thereby precluding summary judgment in defendants' favor (id.; [*2]Lavali vLavali, 89 AD3d 574, 575 [2011] [expert opinion that plaintiff's injuries weredegenerative in nature and thus unrelated to her accident sufficiently rebutted by opinion ofplaintiff's expert, who upon a physical examination of the plaintiff opined that plaintiff's injurieswere caused by the accident]).
Plaintiff also established that she sustained a medically determined injury, which preventedher from performing her usual and customary daily activities for not less than 90 days during the180 days immediately following this accident. She thus raised an issue of fact precludingsummary judgment with respect to this nonpermanent category of serious injury (Padilla vStyle Mgt. Co., 256 AD2d 27 [1998]). Specifically, plaintiff's chiropractor stated that uponan examination performed two days after plaintiff's accident, he concluded that as a result of thisaccident plaintiff sustained an injury to her spine, and he therefore advised her to refrain fromengaging in certain activities, such as cleaning, shopping, and walking. Moreover, plaintiff, byaffidavit, stated that subsequent to this accident she was confined to her home for approximatelysix months and was unable to clean, shop, or carry bags (cf. Mercado-Arif v Garcia, 74 AD3d 446, 447 [2010]["chiropractor's statement that plaintiff was told to limit her physical activities for approximatelyfour months was too general to constitute the requisite competent medical proof to substantiatethe claim"]).
To the extent that plaintiff seeks to appeal from the motion court's denial of her motion toreargue, that portion of her appeal is hereby dismissed because a denial of reargument is notappealable (see CPLR 5701 [a] [2] [viii]; Prime Income Asset Mgt., Inc. v American Real Estate Holdings L.P.,82 AD3d 550, 551 [2011], lv denied 17 NY3d 705 [2011]). In view of our reversalof the motion court's determination as to summary judgment, plaintiff's appeal from the court'sorder, tacitly denying renewal is dismissed as academic.
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Saxe, J.P., Sweeny, Moskowitz, Manzanet-Daniels and RomÁn, JJ.