Opinion
2012-03-22
Elizabeth BIASCOCHEA, Plaintiff–Appellant, v. Grisel BOVES, et al., Defendants–Respondents,J.V. Service, Inc., et al., Defendants.
Annette G. Hasapidis, South Salem, for appellant. Hardin, Kundla, McKeon & Poletto, P.A., New York (Stephen P. Murray of counsel), for Grisel Boves, D–J Ambulette Service, Inc., and D & J Service, Inc., respondents.
Annette G. Hasapidis, South Salem, for appellant. Hardin, Kundla, McKeon & Poletto, P.A., New York (Stephen P. Murray of counsel), for Grisel Boves, D–J Ambulette Service, Inc., and D & J Service, Inc., respondents. Law Offices of Composto & Composto, Brooklyn (Andrea F. Composto of counsel), for David W. Ramsey, respondent.GONZALEZ, P.J., SWEENY, MOSKOWITZ, RENWICK, RICHTER, JJ.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered August 26, 2010, which, to the extent appealed from as limited by the briefs, granted the motion of defendants D & J Service, Inc., D–J Ambulette Service, Inc., and Grisel Boves, and the cross motion of defendant David W. Ramsey, for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, the motion and cross motion denied, and the complaint reinstated with respect to plaintiff's allegations of permanent consequential limitation of use of a body organ or member and/or significant limitation of use of a body function or system.
Defendants met their burden on summary judgment by tendering the affirmed reports of their orthopedist and neurologist ( see Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590, 920 N.Y.S.2d 24 [2011] ). Defendants' radiologist's opinions, however, were too equivocal to satisfy defendants' burden with respect to showing degeneration in an effort to disprove causation ( see Reyes v. Diaz, 82 A.D.3d 484, 917 N.Y.S.2d 632 [2011] ).
In opposition, plaintiff raised a triable issue of fact with respect to her knee injuries. Defendant's radiologist, after reviewing an MRI of plaintiff's knee, made findings which she described as due to either “a tear or prior surgery.” However, plaintiff testified that prior to this accident, she never suffered injuries to her left knee. In addition, her treating physician found limitations of motion in her left knee, findings which conflicted with the reports from defendant's physicians, and raised a triable issue of fact ( see Jacobs v. Rolon, 76 A.D.3d 905, 908 N.Y.S.2d 31 [2010] ).
While plaintiff did not undergo contemporaneous range of motion measurements, they are not necessary, in light of her visit to Dr. Eliav, two days after her accident, which established the requisite causation ( see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ). Although Dr. Rose did not expressly address defendants' expert's conclusion that the injuries were degenerative in origin, he relied on the same MRI report as Dr. Berkowitz, and attributed plaintiff's injuries to a “different, yet altogether equally plausible, cause” ( see Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [2011] ), thus raising a triable issue of fact with regard to her left knee injuries ( see Linton v. Nawaz, 62 A.D.3d 434, 439–440, 879 N.Y.S.2d 82 [2009], affd. 14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010] ).