| Kone v Rodriguez |
| 2013 NY Slip Op 04560 [107 AD3d 537] |
| June 18, 2013 |
| Appellate Division, First Department |
| Abdoulaye Kone, Respondent, et al.,Plaintiff, v Jean Rodriguez, Appellant. |
—[*1] Michael S. Grossman, New York, for respondent.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered March 27, 2012,which denied defendant's motion for summary judgment dismissing the complaintalleging serious injuries to plaintiff Abdoulaye Kone's cervical spine, lumbar spine, andleft shoulder under the "permanent consequential limitation of use" and "significantlimitation of use" categories of Insurance Law § 5102 (d), unanimously modified,on the law, the motion granted to the extent of dismissing the claim alleging "permanentconsequential limitation," and otherwise affirmed, without costs.
Defendant established prima facie absence of a serious injury by submitting theaffirmed report of his orthopedist, who examined plaintiff 2½ years after theaccident and found full range of motion, negative test results, and resolved sprains in thecervical spine, lumbar spine, and left shoulder (see Melo v Grullon, 101 AD3d 452 [1st Dept 2012]; Bailey v Islam, 99 AD3d633 [1st Dept 2012]). He also established lack of causation as to the lumbar spineand left shoulder by submitting the affirmed MRI reports of his radiologist, whoreviewed the MRI films and concluded that the disc bulging and disc herniation in thelumbar spine, and subacromial bone spur in the left shoulder, were degenerative innature, and found no evidence of acute trauma-related injury in either part of the body(see Pannell-Thomas vBath, 99 AD3d 485, 485-486 [1st Dept 2012]).
Plaintiff failed to raise a triable issue of fact as to existence of a "permanentconsequential limitation," as his orthopedist's findings of limitations and positive clinicaltest results in the cervical spine, lumbar spine, and left shoulder were not based on arecent examination, but on an examination that was performed over 14 months before theexamination by defendant's orthopedist (Vega v MTA Bus Co., 96 AD3d 506, 507 [1st Dept2012]). Nevertheless, plaintiff raised a triable issue of fact as to "significant limitation ofuse" of all three parts of the body, as the affirmed report of his orthopedist showspersisting meaningful limitations as of a year and three months after the accident (seeVasquez v Almanzar, 107 AD3d 538 [1st Dept 2013] [decided simultaneouslyherewith]; see also Lopez v [*2]Senatore, 65NY2d 1017 [1985]; Estrella vGEICO Ins. Co., 102 AD3d 730 [2d Dept 2013]). The orthopedist's opinion thatplaintiff's injuries are directly related to the accident, based on his own examination,review of plaintiff's medical records, and plaintiff's reported history of an absence ofprior problems in the neck, lower back, or left shoulder, sufficiently raises a triable issueof fact as to causation (see Perlv Meher, 18 NY3d 208, 218-219 [2011]; Bonilla v Abdullah, 90 AD3d 466, 467 [1st Dept 2011],lv dismissed 19 NY3d 885 [2012]; Yuen v Arka Memory Cab Corp., 80 AD3d 481, 482 [1stDept 2011]). Concur—Tom, J.P., Acosta, Saxe and Freedman, JJ.