Opinion
65 303213/12.
01-28-2016
Regla ECHEVARRIA, Plaintiff–Appellant, v. Amy Lee OCASIO, et al., Defendants–Respondents.
Mitchell Dranow, Sea Cliff, for appellant. Richard T. Lau & Associates, Jericho (Marcella Gerbasi Crewe of counsel), for respondents.
Mitchell Dranow, Sea Cliff, for appellant.
Richard T. Lau & Associates, Jericho (Marcella Gerbasi Crewe of counsel), for respondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 28, 2014, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate that she suffered a serious injury to her cervical or lumbar spine within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to plaintiff's claim that she suffered serious injuries involving significant limitations of use of the cervical and lumbar spine, and otherwise affirmed, without costs.
In opposition to defendants' prima facie showing of the lack of a serious injury (see Kone v. Rodriguez, 107 A.D.3d 537, 538, 967 N.Y.S.2d 359 1st Dept.2013 ), plaintiff failed to provide medical evidence reconciling the current findings of limitations in her spine's range of motion and the earlier findings of normal range of motion in the spine. Accordingly, the motion court correctly dismissed her claims of injuries involving “permanent consequential” limitations to the spine (Perdomo v. City of New York, 129 A.D.3d 585, 586, 12 N.Y.S.3d 60 1st Dept.2015; see Santos v. Perez, 107 A.D.3d 572, 574, 968 N.Y.S.2d 43 1st Dept.2013 ). However, plaintiff's medical evidence was sufficient to raise an issue of fact as to whether she suffered injuries involving significant limitation in use of her spine (see Sutliff v. Qadar, 122 A.D.3d 452, 453, 996 N.Y.S.2d 260 1st Dept.2014 ).
The motion court correctly dismissed plaintiff's 90/180–day claim, given her deposition testimony that she returned to work immediately after the accident, and was not confined to bed or home during the relevant period (see Mitrotti v. Elia, 91 A.D.3d 449, 450, 936 N.Y.S.2d 42 1st Dept.2012 ).