| Cruz v Rivera |
| 2012 NY Slip Op 02811 [94 AD3d 576] |
| April 17, 2012 |
| Appellate Division, First Department |
| Noel Cruz, Respondent, v Felix Rivera, Appellant, et al.,Defendants. |
—[*1] Jonathan Rice, Dobbs Ferry, for respondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 14, 2011, which,insofar as appealed from as limited by the briefs, in this action for personal injuries sustained in amotor vehicle accident, denied defendant Felix Rivera's motion for summary judgmentdismissing the complaint as against him, unanimously modified, on the law, to grant the motionto the extent of dismissing plaintiff's 90/180-day claim, and otherwise affirmed, without costs.
Defendant established his entitlement to judgment as a matter of law. Defendant submittedthe affirmed report from an orthopedist who, based upon an examination of plaintiff, found fullrange of motion in the relevant parts of the body and concluded that all sprains/strains hadresolved. Defendant also submitted plaintiff's bill of particulars and deposition testimony whereinhe stated that he only missed about one week of work as a result of the accident.
Plaintiff raised triable issues of fact as to the existence of serious injuries to his cervical andlumbar spine. Plaintiff submitted, inter alia, the affirmation of his treating physician, whoreviewed MRI reports finding disc herniations and bulges and, upon examination, found thatplaintiff suffered persisting muscle spasms and limitations in multiple ranges of motion. Viewingthe evidence in the light most favorable to plaintiff, the physician's attribution of a quantifiedpercentage of loss of range of motion was sufficient to raise triable issues of fact (see Perl v Meher, 18 NY3d 208,217 [2011]; Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). The unaffirmedMRI reports, which were referred to and not disputed by defendant's medical expert, and wererelied upon by plaintiff's physician, were properly considered in opposition to the motion sincethey were not the sole basis for the findings of plaintiff's physician (see Rubencamp v Arrow ExterminatingCo., Inc., 79 AD3d 509 [2010]).
Dismissal of plaintiff's 90/180-day claim is warranted in light of the allegation in his bill ofparticulars that he was confined to bed for only a week, and his deposition testimony that hemissed about a week of work after the accident (see Hospedales v "John Doe", 79 AD3d 536 [2010]; McClelland v Estevez, 77 AD3d403 [2010]).[*2]
We have considered the remaining contentions, includingdefendant's claim that there was an unexplained gap in treatment, and find them unavailing.Concur—Tom, J.P., Catterson, Richter, Abdus-Salaam and Román, JJ.