| Williams v Perez |
| 2012 NY Slip Op 01176 [92 AD3d 528] |
| February 16, 2012 |
| Appellate Division, First Department |
| Lawrence Williams et al., Respondents, v Andres Perez etal., Appellants. |
—[*1] Edelman, Krasin & Jaye, PLLC, Carle Place (Jarad Lewis Siegel of counsel), forrespondents.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered March 3, 2011, whichdenied defendants' motion for summary judgment dismissing the complaint on the thresholdissue of serious injury within the meaning of Insurance Law § 5102 (d), unanimouslymodified, on the law, to the extent of dismissing the 90/180-day claim, and otherwise affirmed,without costs.
Defendants have established prima facie that plaintiff Lawrence Williams did not sustain aserious injury of a permanent nature. However, plaintiffs have submitted medical evidence inadmissible form, including affirmations of two treating orthopedists, both of whom performedsurgical procedures on plaintiff Lawrence Williams within the year following his accident andboth of whom performed specific range of motion tests before and after the surgeries. Thisevidence raises triable issues as to permanent significant or consequential limitations caused bythe accident.
Defendants have submitted, inter alia, the affirmed reports of medical experts who, uponexamination, found that plaintiff had full range of motion in his shoulders and cervical andlumbar spines and that the MRIs of his neck, back and left shoulder mainly showed degenerativechanges (see Spencer v Golden Eagle,Inc., 82 AD3d 589, 590 [2011]). They also submitted plaintiff's testimony that hissurgeries were successful, that he continued to lift weights, and that he returned to constructionwork.
However, in opposition, plaintiffs have raised a triable issue of fact concerning a significantlimitation and a permanent consequential limitation with respect to plaintiff's right shoulder.Plaintiff underwent two surgical procedures that were medically related to his accident. The firstinvolved a percutaneous disk ablation for post-traumatic disc disease and lumbar radiculopathyand the second involved arthroscopic surgery to his right shoulder. Contrary to the findings ofdefendants' experts that plaintiff showed normal range of motion both with regard to his back andshoulder, plaintiffs' experts, Doctors Sebastian Lattuga and Dov J. Berkowitz, both treatingorthopedic surgeons, found significantly decreased ranges of motion, and opined that plaintiffcontinued to have back spasms and weakness and a permanent consequential limitation of the useof his right shoulder. In duly affirmed statements, Dr. [*2]Berkowitz specifically attributed the shoulder limitation to themotor vehicle accident on December 10, 2007 and Dr. Lattuga attributed continued back spasmsto the same accident. Although plaintiffs' experts did not expressly address defendants' expert'sopinion that the injuries were the result of degenerative changes, by relating the injuries to theaccident, plaintiffs' physicians raised triable issues of fact (Perl v Meher, 18 NY3d 208 [2011]; Linton v Nawaz, 62 AD3d 434[2009], affd 14 NY3d 821, 822 [2010]; Yuen v Arka Memory Cab Corp., 80 AD3d 481 [2011]).
The evidence that plaintiff missed less than 90 days of work in the 180 days immediatelyfollowing the accident and indeed otherwise worked "light duty" is fatal to the 90/180-day claim(see Tsamos v Diaz, 81 AD3d546 [2011]). Concur—Gonzalez, P.J., Saxe, Moskowitz, Acosta and Freedman, JJ.