| Bailey v Islam |
| 2012 NY Slip Op 07207 [99 AD3d 633] |
| October 25, 2012 |
| Appellate Division, First Department |
| Basil Bailey et al., Appellants, v Shariful M.D. Islam et al.,Respondents. |
—[*1] Cheven, Keely & Hatzis, New York (William B. Stock of counsel), forrespondents.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or aboutApril 4, 2012, which granted defendants' motion for summary judgment dismissing the complaintfor failure to satisfy the serious injury threshold of Insurance Law § 5102 (d), unanimouslymodified, on the law, to the extent of denying the motion with respect to plaintiffs' claim ofserious injury under the "fracture" category of Insurance Law § 5102 (d), and otherwiseaffirmed, without costs.
The conflicting expert opinions as to the existence of a fracture in the injured plaintiff'scervical spine precludes summary dismissal. While defendants established absence of a fractureby submitting the affirmed report of their radiologist, who found no evidence of post-traumaticchanges, plaintiff raised a triable issue of fact by submitting the affirmation of his radiologistaverring that he found subchondral fractures at the C3 and C4 levels of the cervical spine uponreview of the MRI film (seeSpagnoli-Scheman v Bellew, 91 AD3d 414 [1st Dept 2012]; Torain v Bah, 78 AD3d 588,588-589 [1st Dept 2010]).
Defendants met their prima facie burden of establishing their entitlement to judgment as amatter of law with respect to plaintiff's claim of serious injury to his right shoulder, by submittingthe reports of their orthopedist and neurologist finding full range of motion, resolved strains, andabsence of orthopedic and neurological disability (see Diakite v Soderstrom, 89 AD3d 607 [1st Dept 2011]; Thompson v Abbasi, 15 AD3d 95,96 [1st Dept 2005]). Plaintiff did not submit any evidence of limitations, contemporaneous orrecent, so as to defeat summary judgment as to this claim (see Winters v Cruz, 90 AD3d 412 [1st Dept 2011]).
Defendants also met their burden with respect to plaintiffs' 90/180-day claim by submittingplaintiff's deposition testimony showing that, although the injuries prevented him from returningto work, they did not otherwise affect his usual pre-accident activities. That plaintiff missed morethan 90 days of work is not determinative of a 90/180-day injury (see Uddin v Cooper, 32 AD3d270, 271 [1st Dept 2006], lv denied 8 NY3d 808 [2007]), and plaintiff has offeredno evidence showing that he was restricted from performing substantially all of the material actsthat constituted his usual and customary daily activities for 90 days during the 180 daysfollowing the accident (see Fernandez vNiamou, 65 AD3d 935 [1st Dept 2009]).
We note, however, that if the trier of fact determines that a fracture injury was sustained,[*2]it may award damages for all injuries causally related to theaccident (see Linton v Nawaz, 14NY3d 821 [2010]; Rubin v SMSTaxi Corp., 71 AD3d 548, 549-550 [1st Dept 2010]). Concur—Mazzarelli, J.P.,Sweeny, Renwick, Richter and Román, JJ.