| Duran v Kabir |
| 2012 NY Slip Op 02173 [93 AD3d 566] |
| March 22, 2012 |
| Appellate Division, First Department |
| Claudia Duran, Respondent, v Humayun Kabir,Appellant. |
—[*1] The Noll Law Firm, P.C., Syosset (Richard E. Noll of counsel), for respondent.
Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered August 26, 2011,which, in this action for personal injuries sustained in a motor vehicle accident, denieddefendant's motion for summary judgment dismissing the complaint, unanimously affirmed,without costs.
Defendant made a prima facie showing of his entitlement to judgment as a matter of law.Defendant submitted expert medical reports of a neurologist, who found normal ranges ofmotion, and of a radiologist who opined that changes shown in MRIs of the lumbar spine of thethen 30-year-old plaintiff were degenerative, and that the MRI of the cervical spine showed noinjury (see Spencer v Golden Eagle,Inc., 82 AD3d 589, 590-591 [2011]).
In opposition, plaintiff submitted the affirmed reports of her physicians, who foundlimitations in the range of motion of plaintiff's cervical and lumbar spine shortly after theaccident and approximately two years later. Plaintiff also submitted the MRI reports of aradiologist, who noted disc bulges in both the cervical and lumbar spine. This evidence raisestriable issues of fact as to whether plaintiff sustained a "significant limitation of use" and"permanent consequential limitation of use" of the cervical and lumbar spine (Insurance Law§ 5102 [d]; see Fuentes vSanchez, 91 AD3d 418 [2012]). While the MRI reports are unsworn, they areadmissible, as the reports and MRI films were reviewed by one of plaintiff's physicians and wereincorporated into the findings of plaintiff's doctors (see Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 492 [2010]).Plaintiff adequately explained the gap in treatment by submitting the affirmed report of a doctor,who opined that plaintiff had "reached an endpoint" in her physical therapy, and that there was noevidence that she was actively improving therefrom (see Mitchell v Calle, 90 AD3d 584, 585 [2011]).
Plaintiff's physicians also addressed defendant's findings of degeneration by opining that theinjuries were causally related to the accident and that the accident aggravated a previouslyasymptomatic condition (see Yuen vArka Memory Cab Corp., 80 AD3d 481, 482 [2011]).
Factual issues as to liability are raised by the parties' conflicting deposition testimony. [*2]Such issues include whether plaintiff had a green arrow in herfavor; whether defendant had the green light in his favor; and whether defendant's taxicab wasstopped or moving prior to plaintiff's vehicle turn into the intersection (see e.g. Shepperson vSalas, 216 AD2d 199 [1995]). Concur—Tom, J.P., Friedman, Acosta, DeGrasse andRomán, JJ.