| James v Perez |
| 2012 NY Slip Op 04230 [95 AD3d 788] |
| May 31, 2012 |
| Appellate Division, First Department |
| Latasha James, Appellant, v Argel A. Perez et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forArgel A. Perez, respondent. Skenderis & Cornacchia P.C., Long Island City (Louis T. Cornacchia III of counsel), forReyes Catalino and Duarte Corp., respondents.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered January 31, 2011, whichgranted defendants' motions for summary judgment dismissing the complaint based on the failureto establish a serious injury pursuant to Insurance Law § 5102 (d), unanimously reversed,on the law, without costs, and the motions denied.
Plaintiff claims to have suffered permanent serious injuries as result of a motor vehicleaccident between a livery cab in which she was a passenger and a second car. Defendant Perezmade a prima facie showing that plaintiff's claimed injuries were not permanent or significant bysubmitting affirmed reports of an orthopedic surgeon and a neurologist who found she had a fullrange of motion in her right knee and lumbar spine, with no evidence of neurological damage(see Insurance Law § 5102 [d]; Grant v United Pavers Co., Inc., 91 AD3d 499 [2012]). In addition,defendants Catalino and Duarte Corp. made a prima facie showing that plaintiff's injuries werenot causally related to the accident by submitting reports of their expert radiologist, Dr. Tantleff,who opined that the minimal disc bulges in plaintiff's lumbar spine and the abnormalities in herright knee, including a flap tear and lateral displacement, were degenerative in nature, aggravatedby her weight, and not inconsistent with her age.
In opposition, plaintiff raised triable issues of fact by presenting the affirmation of hertreating orthopedist, who reviewed her MRI films and the unaffirmed reports of the orthopedicsurgeon who performed arthroscopic surgery on the right knee. He concluded, based on themedical records and following a series of examinations, that plaintiff had suffered permanentinjuries including lumbar disc herniations and tears of the medial and lateral meniscus, caused bythe accident (see Duran v Kabir, 93AD3d 566 [2012]). He found limitations in lumbar spine range of motion which correlatedwith the MRI findings of lumbar disc herniations (see Gonzalez v Vasquez, 301 AD2d438, 439 [2003]), and made positive findings of qualitative limitations in function of the rightknee, as compared to the uninjured left knee, raising an issue as to permanent injury to the rightknee persisting after her arthroscopic surgery (see Suazo v Brown, [*2]88 AD3d 602 [2011]; Mitchell v Calle, 90 AD3d 584, 584-585 [2011]). Plaintiff's expertalso opined that the injuries were traumatically induced as the result of the accident, consistentwith evidence in the MRI films and the 28-year-old plaintiff's lack of pre-accident right knee orlumbar spine injuries or complaints, thereby raising an issue of fact as to causation (seeDuran, 93 AD3d at 567; Yuen vArka Memory Cab Corp., 80 AD3d 481, 482 [2011]).
With respect to plaintiff's 90/180-day claim, defendants did not dispute that she did notreturn to her work as a nurse's aid for over three months after the accident, during which time shehad arthroscopic surgery after an unsuccessful course of physical therapy, or provide any medicalevidence that she was able to perform her usual and customary activities for at least 90 of the 180days following the accident (Insurance Law § 5102 [d]; see Quinones v Ksieniewicz, 80 AD3d 506 [2011]). Defendants,however, did submit evidence that plaintiff's injuries were not caused by the accident (see Townes v Harlem Group, Inc., 82AD3d 583 [2011]). Nevertheless, for the reasons stated above, the opinion of plaintiff'streating physician, as well as the medical reports relied upon, were sufficient to raise an issue offact as to the 90/180-day claim (id.). Concur—Tom, J.P., Andrias, Saxe,Moskowitz and Acosta, JJ.