| Angeles v American United Transp., Inc. |
| 2013 NY Slip Op 07124 [110 AD3d 639] |
| October 31, 2013 |
| Appellate Division, First Department |
| Luis R. Angeles, Respondent, v American UnitedTransportation, Inc., et al., Appellants. |
—[*1] Mallilo & Grossman, Flushing (F. Jason Kajoshaj of counsel), forrespondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered January 17, 2013,which, to the extent appealed from as limited by the briefs, denied defendants' motion forsummary judgment dismissing the complaint on the ground that plaintiff did not suffer aserious injury under the "permanent consequential" and "significant" limitation of usecategories of Insurance Law § 5102 (d), unanimously affirmed, without costs.
Defendants made a prima facie showing of entitlement to summary judgment as toplaintiff's claims of permanent consequential, or significant, limitation of use of hiscervical spine, lumbar spine and shoulders by submitting expert medical reports of aneurologist and orthopedist who found full range of motion in those parts uponexamination, and of a radiologist who found that the MRIs of plaintiff's cervical andlumbar spine taken shortly after the accident showed no evidence of disc bulges orherniations (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 353 [2002]; Santos v Perez, 107 AD3d572, 573 [1st Dept 2013]; Robinson v Joseph, 99 AD3d 568 [1st Dept 2012]). To theextent the radiologist opined, without any elaboration, that any discogenic changes wereeither age-related or a co-morbidity of "increased body habitus/obesity," the opinion isinsufficient, in light of the fact that plaintiff was 29 years old at the time of the accident,to shift the burden on the issue of causation of the spinal injuries (see De La Cruz v Hernandez,84 AD3d 652 [1st Dept 2011]).
In opposition, plaintiff raised a triable issue of fact with respect to whether hesustained serious injuries in his cervical and lumbar spine by submitting affirmed reportsof a radiologist and physician who found bulging and/or herniated discs shown in theMRIs taken shortly after the accident, and continuing range-of-motion deficits of thosebody parts (see Duran vKabir, 93 AD3d 566 [1st Dept 2012]; Seck v Balla, 92 AD3d 543 [1st Dept 2012]). Althoughthe report of the osteopath who treated plaintiff after the accident is unaffirmed, plaintiffis not required to present contemporaneous range of motion findings in order to establishserious injury, and his testimony, together with the osteopath's report and the MRIs takenshortly after the accident, was sufficient to demonstrate a causal link between his claimedspinal injuries and the accident (see Perl v Meher, 18 NY3d 208 [2011]; Biascochea v Boves, 93 AD3d548, 549 [1st Dept 2012]). [*2]Further, his experttreating physician opined, after examination, that his injuries were causally related to theaccident (see June v Akhtar,62 AD3d 427 [1st Dept 2009]).
Accordingly, we need not reach the other claimed injuries. If the trier of factdetermines that plaintiff sustained a serious injury, it may award damages for all injuriescausally related to the accident, even those that do not meet the threshold (Linton v Nawaz, 14 NY3d821 [2010]; Rubin v SMSTaxi Corp., 71 AD3d 548, 549 [1st Dept 2010]; Singer v Gae Limo Corp., 91AD3d 526 [1st Dept 2012]). Concur—Mazzarelli, J.P., Renwick, DeGrasse,Feinman and Gische, JJ.