| McArthur v Act Limo, Inc. |
| 2012 NY Slip Op 02174 [93 AD3d 567] |
| March 22, 2012 |
| Appellate Division, First Department |
| Everett McArthur, Respondent, et al., Plaintiff, v ActLimo, Inc., et al., Appellants. |
—[*1] Silbowitz, Garafola, Silbowitz, Schatz & Frederick, L.L.P., New York (Howard E. Frederickof counsel), for respondent.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered August 29, 2011, which,insofar as appealed from, denied defendants' motion for summary judgment dismissing theclaims asserted by plaintiff Everett McArthur, unanimously modified, on the law, to the extent ofgranting the motion as to plaintiff McArthur's claims for injuries to his cervical and lumbar spine,90/180-day injury, and permanent loss of use claim, and otherwise affirmed, without costs.
Plaintiff McArthur, who was involved in four accidents prior to the accident that is thesubject of this litigation, asserts that he sustained a serious injury pursuant to Insurance Law§ 5102 (d). He claims that as a result of this most recent accident, he suffered injuries to,inter alia, his cervical and lumbar spine, right shoulder, neck and right hip. MRIs taken beforethis accident showed cervical and lumbar herniations and bulges for which plaintiff was treated.
Defendants met their initial burden with respect to plaintiff's claims of injury to his neck,back and shoulder by submitting affirmed reports of a radiologist and orthopedist, which assertedthat plaintiff's neck and back injuries preexisted the accident and were degenerative in nature.The reports further asserted that any injury to plaintiff's shoulder had resolved (see Toure vAvis Rent A Car Sys., 98 NY2d 345, 350-352 [2002]; Grant v United Pavers Co., Inc., 91 AD3d 499 [2012]).
In opposition, plaintiff failed to raise an issue of fact as to his claimed cervical and lumbarspine injuries, since his doctors ignored the effect of his prior accidents, and did not present anyevidence that those claimed injuries were different from the injuries that predated the subjectaccident (see Mitrotti v Elia, 91AD3d 449 [2012]; compare Fuentesv Sanchez, 91 AD3d 418 [2012]). However, plaintiff raised an issue of fact as to hisright shoulder injury by relying on the sworn reports of the orthopedic surgeon who performedarthroscopic surgery to repair a tear. The reports explained how the injury was caused by theaccident and quantified continuing limitations in the right shoulder, some two years after thesurgery (see Perl v Meher, [*2]18 NY3d 208, 219 [2011];Jang Hwan An v Parra, 90 AD3d574 [2011]).
Plaintiff does not dispute that he did not meet the requirements for establishing a 90/180-dayclaim and that he has not suffered a permanent loss of use of any body organ or function.Concur—Tom, J.P., Friedman, Acosta, DeGrasse and Román, JJ.