Opinion
2013-02-19
Jacinto C. CALCANO, Plaintiff–Appellant, v. Juan I. RODRIGUEZ, Defendant–Respondent.
Ephrem J. Wertenteil, New York, for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondent.
Ephrem J. Wertenteil, New York, for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondent.
ANDRIAS, J.P., FRIEDMAN, MOSKOWITZ, FREEDMAN, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about March 10, 2011, which, in an action for personal injuries sustained in a motor vehicle accident, granted defendant's motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion denied.
Defendant demonstrated that the injuries plaintiff sustained to his left shoulder and to his lumbar and cervical spines were not serious within the meaning of Insurance Law § 5102(d). Defendant submitted evidence, including the affirmed reports of a radiologist and an orthopedist, showing that the injuries were not caused by the accident, but were degenerative conditions that preexisted the accident ( see Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590–591, 920 N.Y.S.2d 24 [1st Dept. 2011] ).
On this record, triable issues of fact exist. A report of an MRI conducted of plaintiff's left shoulder on December 15, 2008, only five weeks after the accident, revealed a partial high-grade tear of the supraspinatus musculotendinous junction and a partial intrasubstance tear of the attachment of the infraspinatus tendon, which the radiologist opined were “post-traumatic with [a] high-degree [ sic ] of certainty.” Plaintiff's orthopedic surgeon, who performed arthroscopic surgery on him on January 27, 2009, observed the relevant musculature with his own eyes, and opined that plaintiff suffered from a torn rotator cuff and impingement causally related to the accident. Although “[a] factfinder could of course reject this opinion” ( see Perl v. Meher, 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ), it cannot be said on this record, as a matter of law, that plaintiff's injuries had no causal connection to the accident.
Plaintiff's evidence showed that he tested positive for an impingement sign test, suffered persistent pain, and continued to exhibit range of motion deficits in his left shoulder even after undergoing arthroscopic surgery ( see Paulino v. Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 [1st Dept. 2012] ). The physicians also documented limitations in the cervical and lumbar spines ( see Jang Hwan An v. Parra, 90 A.D.3d 574, 936 N.Y.S.2d 18 [1st Dept. 2011] ).
Defendant did not meet his initial burden with respect to plaintiff's 90/180–day claim, since the argument was raised for the first time in his reply papers ( see Tadesse v. Degnich, 81 A.D.3d 570, 917 N.Y.S.2d 569 [1st Dept. 2011]; McNair v. Lee, 24 A.D.3d 159, 805 N.Y.S.2d 67 [1st Dept. 2005] ). Since the burden never shifted to plaintiff, it is unnecessary to consider the sufficiency of his evidence in opposition ( see Singer v. Gae Limo Corp., 91 A.D.3d 526, 937 N.Y.S.2d 39 [1st Dept. 2012] ). All concur except MOSKOWITZ and MANZANET–DANIELS, JJ. who concur in a separate memorandum by MANZANET–DANIELS, J. as follows:
MANZANET–DANIELS, J. (concurring).
Defendant demonstrated that the injuries plaintiff sustained to his left shoulder and to his lumbar and cervical spines were not serious within the meaning of Insurance Law § 5102(d). Defendant submitted evidence, including the affirmed reports of a radiologist and an orthopedist, showing that the injuries were not caused by the accident, but were degenerative conditions that preexisted the accident ( see Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590–591, 920 N.Y.S.2d 24 [1st Dept. 2011] ).
Plaintiff, in turn, raised triable issues of fact. The record demonstrates that plaintiff was asymptomatic before the accident. Although plaintiff's physicians did not expressly address the conclusion that the injuries to the left shoulder and cervical spine were degenerative in origin, they attributed the injuries to a different, yet equally plausible cause, namely the accident ( see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011];Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [2011];Biascochea v. Boves, 93 A.D.3d 548, 940 N.Y.S.2d 599 [1st Dept. 2012]; Williams v. Perez, 92 A.D.3d 528, 938 N.Y.S.2d 536 [2012];Grant v. United Pavers Co., Inc., 91 A.D.3d 499, 937 N.Y.S.2d 20 [1st Dept. 2012] ).
In my view, the majority fails to appreciate the breadth of the Court of Appeals' holding in Perl. In Perl, the defendant's expert opined that the etiology of certain injuries was degenerative. The plaintiff's physician countered that since the plaintiff was asymptomatic before to the accident and had not suffered any prior injuries that would result in the positive radiological findings, the findings were causally related to the accident (18 N.Y.3d at 219, 936 N.Y.S.2d 655, 960 N.E.2d 424). Given the unequivocal holding of the Court of Appeals that proof such as this on a plaintiff's part suffices to raise a triable issue of fact as to causation, our holding in this case ought not be limited in the manner suggested by the majority ( see Perl, 18 N.Y.3d at 218–19, 936 N.Y.S.2d 655, 960 N.E.2d 424;Jeffers v. Style Tr., Inc., 99 A.D.3d 576, 577, 952 N.Y.S.2d 541 [1st Dept. 2012]; Pannell–Thomas v. Bath, 99 A.D.3d 485, 952 N.Y.S.2d 499 [1st Dept. 2012]; Pakeman v. Karekezia, 98 A.D.3d 840, 841, 950 N.Y.S.2d 378 [1st Dept. 2012]; Martin v. Portexit Corp., 98 A.D.3d 63, 67–68, 948 N.Y.S.2d 21 [1st Dept. 2012]; Davis v. Alnhmi, 96 A.D.3d 507, 508, 946 N.Y.S.2d 163 [1st Dept. 2012]; Thompkins v. Ortiz, 95 A.D.3d 418, 943 N.Y.S.2d 474 [1st Dept. 2012]; Vaughan v. Leon, 94 A.D.3d 646, 648, 943 N.Y.S.2d 63 [1st Dept. 2012]Biascochea, 93 A.D.3d at 549, 940 N.Y.S.2d 599;Grant, 91 A.D.3d at 500, 937 N.Y.S.2d 20).