| Melo v Grullon |
| 2012 NY Slip Op 08432 [101 AD3d 452] |
| December 6, 2012 |
| Appellate Division, First Department |
| Pedro Melo, Appellant, v Jose Grullon,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), forrespondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered August 3, 2011, whichgranted defendants' motion for summary judgment dismissing the complaint on the thresholdissue of serious injury under Insurance Law § 5102 (d), unanimously modified, on the law,to deny the motion as to the claims of serious injury resulting in "permanent consequential" or"significant" limitations and fracture, and otherwise affirmed, without costs.
Defendant established prima facie that plaintiff did not sustain a serious injury resulting ineither a "permanent consequential" or a "significant" limitation of use of his lumbar spine bysubmitting an affirmation by a neurologist who examined plaintiff and found a full range ofmotion of the lumbar spine, and diagnosed him with a resolved lumbar sprain/strain (see Baez v Boyd, 90 AD3d 524[1st Dept 2011]).
In opposition, plaintiff raised an issue of fact by submitting an MRI report by his radiologist,who found a disc herniation at L4-5; a report by a physician who opined that a subsequent MRIof the lumbar spine revealed an acute compression fracture of the endplate at L3 and discherniations at L4-5 and other levels; his chiropractor's affidavit showing range of motionlimitations contemporaneous with the accident; and affirmations by three physicians who foundcontinuing limitations and opined that these limitations were permanent and that the lumbarinjuries were directly caused by the accident (see Thompkins v Ortiz, 95 AD3d 418 [1st Dept 2012]). This recorddoes not support plaintiff's contention that he suffered a permanent loss of use of his lumbarspine (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]).
Defendant established prima facie that plaintiff did not sustain a 90/180-day injury by [*2]submitting plaintiff's bill of particulars and deposition testimonyacknowledging that he was confined to bed and home for only a week; in opposition, plaintifffailed to raise an issue of fact (seeHospedales v "John Doe", 79 AD3d 536 [1st Dept 2010]). Concur—Tom, J.P.,Mazzarelli, Moskowitz, Abdus-Salaam and Feinman, JJ.