| Osborne v Diaz |
| 2013 NY Slip Op 01609 [104 AD3d 486] |
| March 14, 2013 |
| Appellate Division, First Department |
| Marjorie T. Osborne et al.,Respondents, v Christian O. Diaz et al., Appellants. |
—[*1] Law Offices Of Alexander Bespechny, Bronx (louis A. Badolato of counsel), forrespondents.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered February 8, 2012,which denied defendants' motion for summary judgment dismissing the complaintalleging serious injuries under Insurance Law § 5102 (d), unanimously modified,on the law, to grant the motion to the extent of dismissing plaintiff Osborne's claims ofserious injury to her cervical spine and under the 90/180-day category and plaintiffAmissah's claims of serious injury to his cervical and lumbar spine and under the90/180-day category, and otherwise affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law by showingthat plaintiff Osborne did not suffer a serious injury to her cervical spine or lumbar spine,and that plaintiff Amissah did not suffer a serious injury to his right shoulder, cervicalspine, and lumbar spine. Defendants submitted affirmed reports of a radiologist whoopined that changes to the spine and shoulder were degenerative in origin and that therewas no evidence of acute recent trauma (see Pannell-Thomas v Bath, 99 AD3d 485 [1st Dept 2012];Arroyo v Morris, 85 AD3d679 [1st Dept 2011]). Defendants also submitted affirmed reports of an orthopedicsurgeon who found full range of motion in every plane, and diagnosed both plaintiffswith resolved strains/sprains of the cervical and lumbar spines (see Melo v Grullon, 101 AD3d452 [1st Dept 2012]).
Contrary to plaintiffs' contention, the affirmation of defendants' neurologist, findinga minor limitation in range of motion in a single plane of Amissah's cervical spine andlumbar spine, is not fatal to defendants' prima facie showing, where the neurologistfound a full range of motion in every other plane, indicated that the deficits weresubjective, and in light of the orthopedic surgeon's opinion that the strains/sprains wereresolved (see Paduani vRodriguez, 101 AD3d 470 [1st Dept 2012]; Sone v Qamar, 68 AD3d 566 [1st Dept 2009]).
Plaintiff Osborne raised an issue of fact as to her lumbar spine injury. She submittedan affirmed report of a neurologist who measured recent limitations in range of motionand, upon reviewing Osborne's medical history and prior lack of symptoms, opined thatthe injuries were caused by the accident (see Bonilla v Abdullah, 90 AD3d 466 [1st Dept 2011],lv dismissed 19 NY3d 885 [2012]). Osborne's neurologist made a positivefinding for straight leg raising test, which provided objective evidence of lumbar injury(see Jackson v Leung, 99AD3d 489 [1st [*2]Dept 2012]; Brown v Achy, 9 AD3d30, 32 [1st Dept 2004]).
Plaintiff Amissah raised an issue of fact as to his right shoulder injury by submittingthe affirmation of his orthopedic surgeon who conducted a number of objective tests,performed arthroscopy, found recent range of motion limitations, and opined, based uponhis examinations and observations made during surgery, that Amissah's injuries werecaused by the accident (seeDelgado v Papert Tr., Inc., 93 AD3d 457 [1st Dept 2012]).
Serious injuries to plaintiffs Osborne's lumbar spine and plaintiff Amissah's rightshoulder having been established, we need not address whether the other injuries claimedby plaintiffs were sufficient to meet the no fault threshold (see Rubin v SMS Taxi Corp.,71 AD3d 548, 549 [1st Dept 2010]).
Plaintiffs' 90/180-day claims are dismissed because the evidence shows Osborne wasconfined to bed and home for about two months after the accident, and Amissah wasconfined to bed and home for about two weeks after surgery. Accordingly, neitherplaintiff alleged the minimum duration to meet the statutory period of disability under the90/180-day category (seeArenas v Guaman, 98 AD3d 461 [1st Dept 2012]; Borja v Delarosa, 90 AD3d407 [1st Dept 2011]). Concur—Gonzalez, P.J., Tom, Richter andAbdus-Salaam, JJ.