| Lugo v Adom Rental Transp., Inc. |
| 2013 NY Slip Op 00046 [102 AD3d 444] |
| January 8, 2013 |
| Appellate Division, First Department |
| Jelissa Lugo, an Infant, by Her Mother and NaturalGuardian, Luz Bermudez, et al., Respondents, v Adom Rental Transportation,Inc., et al., Appellants, et al., Defendants. |
—[*1] Melvyn S. Jacknowitz, New York (Barry S. Huston of counsel), forrespondents.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered February 7, 2012,which denied defendants Adom Rental Transportation and Mamdee Jomandy's motionfor summary judgment dismissing the complaint as against them on the threshold issue ofserious injury under Insurance Law § 5102 (d), unanimously modified, on the law,to grant the motion as to all plaintiff Luz Bermudez's claims and as to plaintiff JelissaLugo's 90/180-day claim, and otherwise affirmed, without costs.
Defendants established prima facie the absence of a serious injury in Bermudez'scervical spine, lumbar spine, and right shoulder by submitting the affirmed report of theirorthopedist who, after examining Bermudez and reviewing her medical records, found nosignificant limitations in those areas and concluded that the injuries were caused bydegenerative conditions consistent with Bermudez's age and history of morbid obesity(Torres v Triboro Servs.,Inc., 83 AD3d 563 [1st Dept 2011]; Pines v Lopez, 88 AD3d 545, 545 [1st Dept 2011]).Defendants also submitted their radiologist's and Bermudez's own radiologist's CT scanreports noting only degenerative changes. In opposition, Bermudez failed to raise atriable issue of fact, since her treating physician did not set forth findings of limitationsin quantitative or qualitative terms (see Toure v Avis Rent A Car Sys., 98 NY2d345 [2002]).
As to plaintiff Lugo, defendants' orthopedist found normal ranges of motion in theleft knee, lumbar spine and cervical spine, and their radiologist opined that the left kneeMRI was normal. The orthopedist also opined that Lugo had bilateral patellamalalignment, a preexisting condition (see Pommells v Perez, 4 NY3d 566, 572 [2005]). Inopposition, Lugo raised a triable issue of fact as to her left knee by submitting the reportsof her orthopedic surgeon, who, during arthroscopic surgery, observed a chondral lesionthat he concluded was caused by trauma, and persisting knee instability and bucklingeven after the surgery. The surgeon's conclusion that the worsened apprehension,persistent buckling, and patellofemoral instability were caused by the [*2]accident and that the symptoms persisted after surgery, andthe conclusion of Dr. Martin Barschi, an orthopedic surgeon retained by thenonappealing defendants to perform an independent medical examination of plaintiff,that the chondral lesion was caused by trauma, raise an issue of fact as to causation (see Perl v Meher, 18 NY3d208, 218-219 [2011]). Lugo also raised a triable issue of fact as to the lumbar spineby submitting Dr. Barschi's report finding a significant limitation in range of motion ofthe lumbar spine. This evidence, in conjunction with the finding by Lugo's radiologistthat her MRI showed a herniated disc in the lumbosacral spine, raises an issue of fact asto serious injury to the lumbar spine (see Toure, 98 NY2d at 353).
Serious injuries to Lugo's left knee and lumber spine having been established, weneed not address her failure to submit evidence of her alleged cervical spine injuries (see Linton v Nawaz, 14 NY3d821 [2010]; Rubin v SMSTaxi Corp., 71 AD3d 548, 549 [1st Dept 2010]).
Defendants established that neither plaintiff sustained a 90/180-day injury, based onthe deposition testimony of each that she was confined to home for only a month after theaccident (see Zhijian Yang vAlston, 73 AD3d 562 [1st Dept 2010]). Neither plaintiff submitted any evidenceto the contrary. Concur—Tom, J.P., Andrias, Freedman, Román and Gische,JJ.