| Pannell-Thomas v Bath |
| 2012 NY Slip Op 06750 [99 AD3d 485] |
| October 9, 2012 |
| Appellate Division, First Department |
| Lorna Pannell-Thomas, Respondent-Appellant, v GurpritS. Bath, Appellant-Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about October31, 2011, which denied defendant's motion for summary judgment dismissing plaintiff'scomplaint alleging serious injuries under Insurance Law § 5102 (d), and denied plaintiff'scross motion for partial summary judgment on the issue of threshold injury, unanimouslyaffirmed, without costs.
Defendant established prima facie that plaintiff did not sustain a "permanent consequential"or "significant" limitation of use of the spine by submitting the affirmed report of a neurologistnoting the absence of permanent neurological disabilities, full ranges of motion, and negativeobjective tests (see Barry v Arias,94 AD3d 499, 499 [1st Dept 2012]). Defendant also made a prima facie showing thatplaintiff's injuries were not causally related to the accident by submitting the affirmed MRIreports of a radiologist who concluded that the changes observed in the spine were degenerative(Gibbs v Reid, 94 AD3d 636,637 [1st Dept 2012]).
In opposition, plaintiff raised a triable issue of fact as to existence of a permanentconsequential or significant limitation of use of her lumbar spine. The affirmed report of herradiologist showed disc herniations, root impingements, and bulging discs, and her treatingphysician performed EMG studies confirming radiculopathies in the spine. The treating physicianalso reported quantified range-of-motion limitations and positive tests during the course oftreatment (see Williams v Tatham,92 AD3d 472, 473 [1st Dept 2012]). The treating physician's affirmation also raised a triableissue of fact as to causation, as she opined that plaintiff's injuries were causally related to theaccident based on, among other things, the fact that plaintiff was asymptomatic and had an activelifestyle for several years before the accident (see Perl v Meher, 18 NY3d 208, 219 [2011]; Seck v Balla, 92 AD3d 543, 544[1st Dept 2012]).
As to the 90/180-day claim, although defendant did not submit any evidence disprovingplaintiff's testimony that she was unable to work for six months due to a medically determinedinjury, he met his prima facie burden by submitting evidence that plaintiff's injuries were notcaused by the accident (see James vPerez, 95 AD3d 788, 789 [1st Dept 2012]). Plaintiff, however, raised an issue of factand established prima facie existence of a 90/180-day injury by submitting her physician'saffirmation stating that the injuries caused by the accident prevented [*2]plaintiff from working and performing her regular daily activitiesduring the requisite period, that plaintiff returned to work six months after the accident againstthe doctor's medical advice, and that plaintiff was partially disabled during the period (seeWilliams, 92 AD3d at 473). Thus, defendant was properly denied summary judgment, andthe issue of fact as to causation precludes granting plaintiff partial summary judgment.Concur—Saxe, J.P., Sweeny, Richter, Abdus-Salaam and Román, JJ.