| Santos v Perez |
| 2013 NY Slip Op 04710 [107 AD3d 572] |
| June 20, 2013 |
| Appellate Division, First Department |
| Aura Siri Santos et al., Appellants, v Pedro A.Perez et al., Defendants, and Gerardo Pena-Taveraz et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin ofcounsel), for respondents.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered January 10,2012, which granted defendants Gerardo Pena-Taveraz and American UnitedTransportation II, Inc.'s motion for summary judgment dismissing the complaint forfailure to satisfy the serious injury threshold under Insurance Law § 5102 (d),unanimously modified, on the law, to deny the motion with respect to plaintiff Aura SiriSantos's claim of serious injury to her lumbar spine, and otherwise affirmed, withoutcosts.
Plaintiffs Aura Siri Santos (Aura) and her sister Maria Siri Santos (Maria) allegedlysuffered serious injuries to their cervical and lumbar spines as the result of a motorvehicle accident that occurred in August 2008, while they were passengers in a taxi.
Defendants met their prima facie burden of showing that Aura did not sustain aserious injury to her cervical spine or lumbar spine by submitting the affirmed reports ofa radiologist who found that the MRIs revealed injuries that were degenerative in nature,consistent with her age and increased body habitus (see Lugo v Adom Rental Transp., Inc., 102 AD3d 444, 445[1st Dept 2013]; Torres vTriboro Servs., Inc., 83 AD3d 563, 564 [1st Dept 2011]), and a neurologist'sfinding of a full range of motion in every plane of both body parts, and diagnosing anyinjuries as resolved (see Gibbs vReid, 94 AD3d 636 [1st Dept 2012]; Steinbergin v Ali, 99 AD3d 609 [1st Dept 2012]).Defendants also met their initial burden with respect to Maria by proffering affirmationsof a radiologist who found that the MRI of the lumbar spine revealed no abnormalitiesand the MRI of the cervical spine revealed only age-related disc bulges, and of aneurologist who found a full range of motion in all planes (see Njie v Thompson, 99AD3d 421, 422 [1st Dept 2012]; Paulino v Rodriguez, 91 AD3d 559 [1st Dept 2012]; Serbia v Mudge, 95 AD3d786 [1st Dept 2012]).
In opposition, Aura submitted sufficient medical evidence to raise an issue of fact asto her alleged lumbar spine injury by submitting the affirmed report of a radiologist whoopined that the MRI showed a focal disc herniation, and the affirmation of her treatingphysician who [*2]opined, based upon his multipleexaminations, review of her medical records, and the fact that she was asymptomaticuntil the accident, that the lumbar herniation was caused by the accident (see Osborne v Diaz, 104 AD3d486, 487 [1st Dept 2013]; Bonilla v Abdullah, 90 AD3d 466, 467 [1st Dept 2011],lv dismissed 19 NY3d 885 [2012]). The treating physician also measured rangeof motion limitations in Aura's lumbar spine shortly after the accident, three months later,and recently, and provided a sufficient explanation of the gap in treatment to raise anissue of fact (see Mercado-Arifv Garcia, 74 AD3d 446 [1st Dept 2010]). However, Aura did not presentevidence of permanent or significant limitations in her cervical spine sufficient to meetthe threshold injury requirement (see Moore v Almanzar, 103 AD3d 415, 416 [1st Dept2013]).
Maria failed to raise an issue of fact as to either of her claimed injuries. Her treatingphysician found that she had normal ranges of motion in her cervical spine at aNovember 2008 examination and insignificant range of motion limitations at aNovember 2010 examination (see id.; Phillips v Tolnep Limo Inc., 99 AD3d 534 [1st Dept2012]; Vega v MTA BusCo., 96 AD3d 506 [1st Dept 2012]). In addition, Maria's failure to explain theinconsistencies between her treating physician's finding of near full range of motion inthe lumbar spine within three months after the accident, and his present findings ofdeficits, entitles defendant to summary judgment (see Dorrian v Cantalicio, 101 AD3d 578 [1st Dept 2012];Jno-Baptiste v Buckley, 82AD3d 578 [1st Dept 2011]).
Finally, we note that Supreme Court properly dismissed plaintiffs' 90/180-dayclaims, which, in any event, plaintiffs have abandoned on this appeal (see Matter of Roberts v Gavin,96 AD3d 669, 670 [1st Dept 2012]; McHale v Anthony, 41 AD3d 265, 266-267 [1st Dept2007]).
We have considered the plaintiffs' remaining arguments, and find them unavailing.Concur—Mazzarelli, J.P., Renwick, Manzanet-Daniels, Gische and Clark, JJ.