| Ramos v Rodriguez |
| 2012 NY Slip Op 01757 [93 AD3d 473] |
| March 13, 2012 |
| Appellate Division, First Department |
| Leida Ramos et al., Respondents, v Willis Rodriguez,Defendant, Executive Pickups, Appellant-Respondent, and Jose L. Cordero et al.,Respondents-Appellants. |
—[*1] Law Offices of Nancy L. Isserlis, Long Island City (Lawrence R. Miles of counsel), forrespondents-appellants. Steven I. Fried, New York, for respondents.
Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered June 23, 2011, denyingdefendants' motions for summary judgment dismissing the complaint based on the failure toestablish a serious injury within the meaning of Insurance Law § 5102 (d), unanimouslymodified, on the law, to grant the motions to the extent of dismissing plaintiffs' 90/180-dayclaims, and otherwise affirmed, without costs.
Defendants made a prima facie showing of entitlement to judgment as a matter of law as toplaintiff Ramos's claims of "permanent consequential limitation of use" and "significantlimitation of use" of her right knee and cervical spine, and plaintiff Benvenutty's similar claimsof serious injury to his lumbar spine. Defendants submitted expert medical reports findingnormal ranges of motions in the subject areas, as well as the MRI reports of a radiologist whoopined that plaintiffs' MRI studies indicated preexisting and degenerative conditions (see Spencer v Golden Eagle, Inc., 82AD3d 589, 590-591 [2011]).
In opposition, plaintiffs raised a triable issue of fact. Plaintiff Ramos submitted theaffirmation of a radiologist who found disc herniations and a meniscal tear on MRI films taken amonth after the accident. Ramos also submitted the affirmation of her treating physician who,based on objective tests, found limitations in the range of motion of Ramos's right knee andcervical spine, opined that her injuries were causally related to the accident, and were notdegenerative. In addition, she submitted an affirmation from the surgeon who performed surgeryon her right knee in which he opined that her knee injury was causally related to the accident andwas not degenerative (see [*2]Spencer, 82 AD3d at 591).
Plaintiff Benvenutty submitted the affirmation of his radiologist who found a herniated discon an MRI film of his lumbar spine taken a month after the accident, and the affirmation of histreating physician who, based on objective tests, found limitations in the range of motion ofBenvenutty's lumbar spine and opined that his injury was causally related to the accident and wasnot degenerative (see Perl v Meher,18 NY3d 208, 218-219 [2011]; Bonilla v Abdullah, 90 AD3d 466, 467 [2011]).
Plaintiffs' deposition testimony refuted their 90/180-day claims, since they alleged that theywere confined to bed for only one week after the accident (see Byong Yol Yi v Canela, 70 AD3d 584, 585 [2010]). Inaddition, their treating physician's statements advising them to avoid activities that caused painand discomfort were too general to raise an issue of fact with respect to those claims (see Antonio v Gear Trans Corp., 65AD3d 869, 869-870 [2009]). Concur—Saxe, J.P., Sweeny, Freedman andManzanet-Daniels, JJ.