| Silverman v MTA Bus Co. |
| 2012 NY Slip Op 08659 [101 AD3d 515] |
| December 13, 2012 |
| Appellate Division, First Department |
| Alyson Silverman, Appellant, et al., Plaintiff, v MTA BusCompany et al., Respondents. |
—[*1] Sullivan & Brill, LLP, New York (Adam A. Khalil and Joseph F. Sullivan of counsel), forrespondents.
Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered on or about October 5,2011, which granted defendants' motion for summary judgment dismissing the complaint on theground that plaintiff did not suffer a serious injury within the meaning of Insurance Law §5102 (d), unanimously modified, on the law, to deny the motion with respect to the claims of"permanent consequential limitation" and "significant limitation" of the cervical and lumbarspine and the 90/180-day claim, and otherwise affirmed, without costs.
Plaintiff, who was 27 years old at the time of the accident, alleges she suffered seriousinjuries as the result of an accident that occurred on November 26, 2007, when the car she wasdriving was struck by a bus owned by defendant MTA Bus Company.
As to the alleged cervical spine and lumbar spine injuries, defendants met their initial burdenby relying on plaintiff's deposition testimony, where she conceded that in 2002, she injured herback and neck when she was struck by a minivan while crossing the street (see Chintam v Fenelus, 65 AD3d946, 947 [1st Dept 2009]; Brewsterv FTM Servo, Corp., 44 AD3d 351, 352 [1st Dept 2007]). In opposition, plaintiff raisedan issue of fact as to those injuries by submitting the affidavit of her chiropractor, who conductedelectrodiagnostic studies which revealed lumbar and cervical radiculopathy, and measuredsignificant limitations in range of motion in every plane, contemporaneously with the 2007accident, continuously through treatment, and recently (see Pinzon v Gonzalez, 93 AD3d 615 [1st Dept 2012]). Thechiropractor adequately addressed causation by explaining that he had also treated plaintiff afterher 2002 accident, and that when he released her from his care in June 2004, she had recoveredand was asymptomatic. His opinion was supported by his review of MRI reports taken in 2002and 2007, which showed that the only injury from the 2002 accident that was preexisting was adisc bulge at L5-S1, and that the subject 2007 accident had caused new injuries, namely bulgingdiscs at C2-3, C3-4, C4-5, C6-7, L3-4, and L4-5, and a subligamentous herniation. Defendantsdid not submit the opinion of an expert radiologist disputing those findings, and since theunaffirmed [*2]MRIs were not the sole basis for the chiropractor'sfindings, they may properly be considered in opposition to the motion (see Cruz v Rivera, 94 AD3d 576[1st Dept 2012]; James v Perez, 95AD3d 788 [1st Dept 2012]).
As to the claimed left knee, shoulder and hand injuries, defendants met their prima facieburden by submitting their expert orthopedist's opinion finding a full range of motion andopining that plaintiff's knee conditions were preexisting and not related to the 2007 accident (see Jno-Baptiste v Buckley, 82 AD3d578 [1st Dept 2011]; Depena vSylla, 63 AD3d 504, 505 [1st Dept 2009], lv denied 13 NY3d 706 [2009]; Martinez v Goldmag Hacking Corp.,95 AD3d 682, 683 [1st Dept 2012]). Plaintiff failed to raise an issue of fact since sheprovided no evidence of permanent limitations resulting from the accident.
Defendants failed to meet their prima facie burden as to plaintiff's 90/180-day claim, sincethe bill of particulars alleged that plaintiff was confined to home for four months and they did notsubmit medical evidence contradicting her claimed disability during that period (see Quinones v Ksieniewicz, 80 AD3d506 [1st Dept 2011]). Concur—Tom, J.P., Sweeny, Moskowitz, Renwick and Clark,JJ.