| Windham v New York City Tr. Auth. |
| 2014 NY Slip Op 01991 [115 AD3d 597] |
| March 25, 2014 |
| Appellate Division, First Department |
| Robin Windham et al., Appellants, v New YorkCity Transit Authority et al., Respondents. |
—[*1] Rehan Nazrali, Jackson Heights, for Kimberly Windham, Cheryl Harper andChandler Windham, appellants. Jeffrey Samel & Partners, New York (Jessica Wisniewski of counsel), for The NewYork City Transit Authority, Manhattan and Bronx Surface Transit Operating Authorityand Juan J. Fuentes, respondents. Picciano & Scahill, P.C., Westbury (Keri A. Wehrheim of counsel), for Thomas V.Shaughnessy, Edwin M. Moreta and Thomas V. Shaughnessy Construction Corp.,respondents.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), enteredJanuary 31, 2012, which granted defendants Shaughnessy, Moreta, and Thomas V.Shaughnessy Construction Corp.'s and defendants New York City Transit Authority,Manhattan and Bronx Surface Transit Operating Authority and Fuentes's motions forsummary judgment dismissing the complaint as against them on the threshold issue ofserious injury pursuant to Insurance Law § 5102 (d), unanimously modified, on thelaw, to deny the motions as to plaintiffs Robin Windham's and Cheryl Harper's claims of"significant limitation of use" and "permanent consequential limitation of use" and as toRobin Windham's and plaintiff Kimberly Windham's 90/180-day claims, and otherwiseaffirmed, without costs. Appeal from order, same court and Justice, entered October 12,2012, which denied Robin's motion to renew and/or to reargue, unanimously dismissed,without costs, as academic and as taken from a nonappealable paper, respectively.Appeal from order, same court and Justice, entered October 12, 2012, which deniedKimberly, Harper, and Chandler's motion for reargument, unanimously dismissed,without costs, as taken from a nonappealable paper.
This action stems from a motor vehicle accident that took place on December 6,2004. Plaintiff Robin Windham was driving her car, with passengers plaintiffs KimberlyWindham, Cheryl Harper, and Chandler Windham. Plaintiffs allege that the car was hithard on the left by the Shaughnessy defendants' cement truck, and then squeezed and hiton the right side by a bus [*2]owned by defendant NewYork City Transit Authority. All plaintiffs allege that they suffered serious injuries as aresult, and Robin and Kimberly alleged in their bill of particulars and testified that theymissed about four months of work as a result of those injuries and were confined tohome.
Defendants made a prima facie showing that none of the plaintiffs suffered a seriousinjury resulting in "significant limitation" and "permanent consequential limitation" ofuse (see Insurance Law § 5102 [d]). They submitted, among other things,reports by their orthopedist and neurologist, who examined each plaintiff 3½ yearsafter the accident and found full range of motion, negative test results, and resolvedsprains in all the body parts claimed to have been injured in the subject accident (see Kone v Rodriguez, 107AD3d 537, 537 [1st Dept 2013]). They also submitted a report by a radiologistopining that Chandler's claimed injuries were preexisting and degenerative.
In opposition, Robin raised a triable issue of fact as to the existence of a "permanentconsequential" and "significant" limitation of use of her cervical and lumbar spine bysubmitting reports by her radiologist finding bulging and herniated discs in the MRIfilms of the cervical and lumbar spine, reports of electrodiagnostic studies findingradiculopathy, and reports by her treating physician showing significant reductions inrange of motion in the cervical and lumbar spine starting shortly after the accident andcontinuing until the time of her most recent examination, seven years after the accident.Contrary to the motion court's finding, the range of motion limitations set forth in thereports were not "so minor, mild or slight as to be considered insignificant" as a matter oflaw (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002] [internalquotation marks omitted]). While defendants argue that Robin did not explain gaps intreatment, she raised an issue of fact by submitting evidence that she sought treatment forrecurring pain after the initial three months of treatment.
Harper raised triable issues of fact as to permanent consequential or significantlimitations in use. Her treating physician's report, which was based on a finalexamination as well as a review of earlier treatment records, found significant limitationsin range of motion in her cervical and lumbar spine, and opined that those injuries werecausally related to the subject accident (see Angeles v American United Transp., Inc., 110 AD3d639, 640 [1st Dept 2013]). Although the MRI report showing bulging and herniateddiscs was not affirmed, it may be considered in opposition to summary judgment,together with Harper's treating physician's report, which was affirmed, because it is notthe sole evidence offered, defendants' experts acknowledged their review of the sameMRI report, and defendants did not submit the opinion of an expert radiologist disputingthe findings therein (seeSilverman v MTA Bus Co., 101 AD3d 515 [1st Dept 2012]). As indicated,plaintiffs were not required to present proof of contemporaneous range of motionfindings as a prerequisite to establishing serious injury (see Perl v Meher, 18 NY3d208, 218 [2011]). The evidence that Harper ceased treatment when her no-faultbenefits terminated constitutes at least "the bare minimum required to raise an issueregarding 'some reasonable explanation' for the cessation of physical therapy" (see Ramkumar v Grand StyleTransp. Enters. Inc., 22 NY3d 905, 907 [2013]).
Kimberly failed to raise an issue of fact whether she suffered injuries resulting in"permanent consequential" or "significant" limitation of use as a result of the accident.Although she submitted medical evidence similar to Robin's and Harper's, she failed topresent any explanation at all for her six-year gap in treatment, which amounted to acessation of treatment, after about three months, despite her having other healthinsurance from her work as a public [*3]school teacher(see Merrick vLopez-Garcia, 100 AD3d 456 [1st Dept 2012]; compare Ramkumar, 22NY3d at 906-907).
Chandler failed to raise an issue of fact since he presented no admissible medicalevidence of a "permanent consequential" or "significant" limitation of use.
Defendants failed to establish prima facie that Robin and Kimberly did not sustain "amedically determined injury or impairment of a non-permanent nature" that preventedthem from performing substantially all of their customary daily activities for 90 of the180 days immediately following the accident (see Insurance Law § 5102[d]). If Kimberly establishes a serious injury in this category, she will be entitled torecover damages for all injuries causally related to the accident, including those that donot meet the serious injury threshold (see Rubin v SMS Taxi Corp., 71 AD3d 548, 549-550 [1stDept 2010]).
Defendants established prima facie that Harper and Chandler did not sustain a90/180-day injury by submitting portions of their deposition testimony showing that theydid not claim to have been confined to bed or home for the requisite amount of time (see Komina v Gil, 107 AD3d596 [1st Dept 2013]). In opposition, Harper and Chandler failed to raise a triableissue of fact since they presented no objective medical evidence to substantiate theirclaims (see Vasquez vAlmanzar, 107 AD3d 538, 541 [1st Dept 2013]).
Our denial of defendants' motion for summary judgment dismissing Robin's claimsrenders her appeal from the denial of her renewal motion academic. In any event, therenewal motion was correctly denied since Robin failed to establish that there had been achange in the law that would change the prior determination (see CPLR 2221 [e][2]).
No appeal lies from the denial of a motion for reargument (Belok v New York City Dept. ofHous. Preserv. & Dev., 89 AD3d 579 [1st Dept 2011]). We note that Kimberly,Harper, and Chandler's motion was identified as one seeking leave to reargue only, basedupon matters of fact or law allegedly overlooked by the court in determining the priormotion (see CPLR 2221 [d] [1], [2]). Thus, Kimberly, Harper, and Chandlercould not, by way of a "Supplemental Affirmation in Support" filed more than threemonths after the motion, convert the motion for leave to reargue to a motion for leave torenew based upon new facts not offered on the prior motion. In any event, the newevidence they proffered would not change the prior determination (see CPLR2221 [e] [2]), and they did not provide a reasonable justification for their failure topresent those facts on the prior motion (CPLR 2221 [e] [3]). Concur—Tom, J.P.,Friedman, Sweeny, Saxe and Freedman, JJ.