| Robinson v Joseph |
| 2012 NY Slip Op 06893 [99 AD3d 568] |
| October 16, 2012 |
| Appellate Division, First Department |
| Della Robinson, Respondent, v Mary Joseph et al.,Defendants, and Adama Mbaye et al., Appellants. |
—[*1] Paris & Chaikin PLLC, New York (Ian M. Chaikin of counsel), for respondent.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about July 1, 2011,which denied defendants Adama Mbaye and Krukman, LLC's motion for summary judgmentdismissing the complaint on the ground that plaintiff did not suffer a serious injury within themeaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants met their prima facie burden of showing that plaintiff did not sustain a seriousinjury to her cervical spine and lumbar spine by submitting the affirmations of a physiatrist andneurologist, both of whom found that plaintiff's cervical spine and lumbar spine demonstratedfull ranges of motion in every plane, comparing plaintiff's values to normal (see Perl v Meher, 18 NY3d 208[2011]; Vega v MTA Bus Co., 96AD3d 506, 507 [1st Dept 2012]; Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [1st Dept2011]). Contrary to plaintiff's contention, it was unnecessary, for defendants to meet their primafacie burden, for their experts to specifically address the positive diagnostic findings withinplaintiff's medical records (see Clemmerv Drah Cab Corp., 74 AD3d 660, 660-661 [1st Dept 2010]; Shumway v Bungeroth, 58 AD3d431 [1st Dept 2009]; Onishi v N &B Taxi, Inc., 51 AD3d 594, 595 [1st Dept 2008]).
Nevertheless, plaintiff raised an issue of fact in opposition as to both her cervical and lumbarspines. She submitted the affirmation of a radiologist explaining that the MRIs of her cervicalspine revealed, among other things, disc herniations at multiple levels, and affirmed results ofEMG tests which revealed lumbar and cervical radiculopathy. Further, plaintiff submitted theaffirmed reports of three treating physicians, all of whom found that plaintiff's cervical andlumbar spine suffered diminished ranges of motion (see Lavali v Lavali, 89 AD3d 574 [1st Dept 2011]; Colon v Bernabe, 65 AD3d 969,970 [1st Dept 2009]). Moreover, plaintiff's physical medicine and rehabilitation expert stated inhis affirmation that the disc herniations and radiculopathies were causally connected to theaccident (see e.g. Fuentes vSanchez, 91 AD3d 418 [2012]).
Defendants failed to meet their initial burden as to plaintiff's 90/180-day claim, since they[*2]relied only on the reports of their medical experts who did notexamine plaintiff during the relevant statutory period and did not address plaintiff's conditionduring the relevant period (see Quinonesv Ksieniewicz, 80 AD3d 506, 506-507 [1st Dept 2011]). Viewing the evidence in a lightmost favorable to plaintiff, as we must at this procedural posture, Supreme Court properly denieddefendants' motion as to the 90/180-day claim (see Cruz v Rivera, 94 AD3d 576 [1st Dept 2012]; Morris v Cisse, 58 AD3d 455, 456[1st Dept 2009]; Alexandre vDweck, 44 AD3d 597 [2d Dept 2007]). Concur—Tom, J.P., Mazzarelli, Andrias,DeGrasse and Román, JJ.