| Seck v Balla |
| 2012 NY Slip Op 01326 [92 AD3d 543] |
| February 21, 2012 |
| Appellate Division, First Department |
| Fatima Seck, Respondent, v Mustaffa Balla et al.,Appellants. |
—[*1] Ephrem J. Wertenteil, New York, for respondent.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about April 12,2010, which denied defendants' motion for summary judgment dismissing the complaint,unanimously modified, on the law, to dismiss the 90/180-day category of plaintiff's InsuranceLaw § 5102 (d) claim, and otherwise affirmed, without costs.
On March 17, 2007, at around 6:00 a.m., plaintiff was returning home from work as restroomattendant at Webster Hall when the livery cab she was riding in was struck from behind by a taxicab owned by defendant Abes Service Corporation and operated by defendant Mustaffa Balla.Plaintiff was 39 years old and was four months pregnant.
An ambulance transported her to the emergency room at Bellevue Hospital, where shecomplained of pain in the lower back, neck, and left wrist. The hospital took X rays of hercervical spine, but was unable to X ray her lumbar spine because of her pregnancy. She wasreleased after a few hours, with instructions to return if she continued to have problems. Shereturned about three or four days later, complaining of lower back pain, and was told "to dotherapy and massage at home."
She began treatment with Dr. Dorina Drukman and physical therapy at Grand CentralPhysical Medicine, and continued until early 2008, when her insurance benefits expired. MRIswere taken of plaintiff's spine after she gave birth in September 2007.
The MRI report of her cervical spine noted "degenerative disc disease, C2-3 through C6-7," a"small Schmorl's Node at C6," and "anterior marginal hypertrophic changes involving C5 andC6." It also noted mild disc bulge at C3-4, C6-7, and C4-5, and a small disc protrusion at C5-6.Further, there was "degenerative disease of the intervertebral disc from C2-3 through C6-7 withloss of the normal cervical lordosis as well as mild flexion of [ ] the cervical curvature from C2through C6." The MRI report of the lumbar spine indicated "central herniation at L3-4 withextension of disc into the neural foramen bilaterally," and herniation at L4-5 and L5-S1.
Plaintiff missed two days of work immediately after the accident. The third day was hernormal day off, and she returned to work on the fourth day. Although she claimed she lost timefrom work thereafter, she could not provide the number of work days she missed due to theaccident. Rather, she testified that she could not work seven days a week, and that she worked[*2]"maybe four days" if Webster Hall was opened seven daysduring a particular week. She stated that as of the date of her deposition, November 20, 2008, shestill felt pain, which would intensify if she worked a lot. She said she could not work as much, goto the gym, carry her 22-pound baby on her back, or do laundry by herself, and had difficultyengaging in sex with her husband.
Defendants moved for summary judgment dismissing the complaint, arguing that plaintiffhad not met the "serious injury" threshold. They relied on affirmations from an orthopedist and aneurologist who performed physical examinations of plaintiff and found no limitation ofmovement, and on the opinion of a radiologist who asserted that the injuries shown in the MRIswere degenerative in origin rather than traumatically induced.
Although defendants assert that the claimed soft tissue injury was not caused by the accident,but was instead solely degenerative in etiology, plaintiff's treating physician asserted, to thecontrary, that "notwithstanding any prior degeneration, Ms. Seck was asymptomatic. Thus thecollision was a competent producing cause of her symptoms and impairments." A question offact exists as to causation, and any questions about the credibility of the conflicting doctors'opinions are for the jury to resolve (Perlv Meher, 18 NY3d 208 [2011]).[FN*]
However, plaintiff's claim under the 90/180-day prong of section 5102 (d) fails as a matter oflaw because, according to plaintiff's own deposition testimony and the report of her treatingosteopath, she returned to work part-time four days after the accident. Concur—Saxe, J.P.,Friedman, Catterson, Acosta and Richter, JJ.
Footnote *: We decline to find a triableissue of fact arising out of the nominal differences ascribed by the defendant's medical experts towhat is, nevertheless, a normal range of motion.