| Jean-Louis v Gueye |
| 2012 NY Slip Op 02612 [94 AD3d 504] |
| April 10, 2012 |
| Appellate Division, First Department |
| Danielle Jean-Louis, Respondent, v Modou Gueye et al.,Appellants. |
—[*1] Law Office of A. Ali Yusaf & Associates, Richmond Hill (Stephen A. Skor of counsel), forrespondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered April 14, 2011,which, in an action for personal injuries, denied defendants' motion for summary judgmentdismissing the complaint on the ground that plaintiff did not suffer a serious injury within themeaning of Insurance Law § 5102 (d), and granted plaintiff's cross motion for partialsummary judgment as to her 90/180-day claim, unanimously modified, on the law, to denyplaintiff's cross motion, and otherwise affirmed, without costs. Appeal from order, same courtand Justice, entered October 12, 2011, which, insofar as it granted reargument, adhered to theprior order, unanimously dismissed, without costs, as academic.
Defendants met their prima facie burden with respect to the permanent consequential andsignificant limitation categories by offering the affirmation of an orthopedic surgeon who foundnormal ranges of motion for plaintiff's cervical spine, lumbar spine, left and right hips, and leftand right knees (see Insurance Law § 5102 [d]; Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]). Plaintiff raised an issue of fact in opposition by submitting theMRI reports of her lumbar spine showing bulges at L4-5 and L5-S1, of her cervical spineshowing disc bulges at C5-C6, and a grade II tear of the MCL of plaintiff's right knee, along withthe affirmation of her orthopedic surgeon stating that such injuries were caused by the accident orhad been exacerbated thereby, and that each of those body parts suffered losses in their range ofmotion as a result of the accident.
We reject defendants' argument that the affirmation of plaintiff's orthopedic surgeon isrendered speculative because of his failure to reconcile the notation made on plaintiff'semergency room records indicating a full range of motion of her cervical spine. Those records areunaffirmed, fail to indicate any objective instruments or criteria used to make such a finding, andfail to compare normal values (seePommells v Perez, 4 NY3d 566, 573-574 [2005]; Rosa-Diaz v Maria Auto Corp., 79 AD3d 463, 464 [2010]; DeJesus v Paulino, 61 AD3d 605[2009]). Further, contrary to defendants' arguments, plaintiff's orthopedic surgeon set forth anadequate basis for relating the accident as the cause of plaintiff's injuries or the exacerbation[*2]thereof (see Perl v Meher, 18 NY3d 208 [2011]). We also reject defendants'arguments pertaining to plaintiff's alleged gap in treatment because it is adequately explained byher orthopedic surgeon's finding that her improvement plateaued (see Pommells v Perez,4 NY3d at 574; Mercado-Arif vGarcia, 74 AD3d 446 [2010]).
As to plaintiff's 90/180-day claim, Supreme Court properly found that plaintiff met her primafacie burden with respect thereto. Plaintiff submitted evidence that her orthopedic surgeoninstructed plaintiff to remain out of work and substantially restrict her day-to-day activities,finding that she was "totally disabled" during the relevant statutory period. Plaintiff testified thatshe had no choice but to do so given the fact that she underwent two surgeries during the relevantperiod. This was further corroborated by the affirmation from her employer stating that plaintiffwas absent from work from February 12, 2008, the date of the accident, until June 23, 2008.However, defendants raised an issue of fact as to whether plaintiff was actually medicallyprevented from going to work and whether any injuries she may have experienced were causedby the accident or preexisted the accident. Plaintiff's emergency room records show that she wasdischarged on the day of the accident with no restrictions and a full range of motion in her neck.Defendants' radiologists opined that plaintiff's MRIs showed no cervical or lumbar spineabnormalities and a preexisting knee condition unrelated to the accident, and their orthopedicsurgeon opined that plaintiff suffered no injury to her spine, that the procedure performed onplaintiff's lumbar spine was not medically indicated, and that she had a preexisting kneecondition (see DeJesus, 61 AD3d 605 [2009]; Black v Regalado, 36 AD3d 437 [2007]).
We have considered the parties' remaining contentions, and find them unavailing.Concur—Andrias, J.P., Friedman, Acosta, Freedman and Richter, JJ.