Opinion
04-18-2017
Verina ROSE, Plaintiff–Appellant, v. Ousmane TALL, et al., Defendants–Respondents, Colete Dana Jones, Defendant.
Krentsel & Guzman, LLP, New York (Steven E. Krentsel of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondents.
Krentsel & Guzman, LLP, New York (Steven E. Krentsel of counsel), for appellant.
Marjorie E. Bornes, Brooklyn, for respondents.
Friedman, J.P., Renwick, Moskowitz, Feinman, Kapnick, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about March 30, 2016, which granted defendants' motions for summary judgment dismissing the complaint based on plaintiff's inability to meet the serious injury threshold under Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants established prima facie that plaintiff did not sustain a serious injury to her lumbar spine through the affirmed reports of their neurologist, who found no limitations as a result of the accident, and radiologist, who, after review of plaintiff's MRI films, found no injuries related to the subject accident (see Green v. Jones, 133 A.D.3d 472, 19 N.Y.S.3d 514 [1st Dept.2015] ). Defendants also relied on reports prepared by plaintiff's treating neurologist, who found minimal limitations in range of motion at examinations conducted months after the accident.
In opposition, plaintiff submitted the report of her neurologist, who reviewed the MRI himself, and opined that plaintiff sustained a disc herniation as a result of the accident. However, his report is insufficient to raise a triable issue of fact because, on his initial examination, he found normal to near-normal range of motion, which did not qualify as a serious injury (see Eisenberg v. Guzman, 101 A.D.3d 505, 956 N.Y.S.2d 21 [1st Dept.2012] ). Furthermore, on a more recent examination, that neurologist found a deficit in one plane and normal to near-normal range of motion in all other planes, and failed to explain the inconsistencies between his earlier findings of almost full range of motion and his present findings of additional deficits, rendering his opinion speculative (see Santos v. Perez, 107 A.D.3d 572, 574, 968 N.Y.S.2d 43 [1st Dept.2013] ; Colon v. Torres, 106 A.D.3d 458, 965 N.Y.S.2d 90 [1st Dept.2013] ). Plaintiff's showing of relatively minor limitations was insufficient to sustain a serious injury claim (see Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ; Cattouse v. Smith, 146 A.D.3d 670, 672, 45 N.Y.S.3d 453 [1st Dept.2017] ).
Defendants also demonstrated that plaintiff did not suffer a 90/180–day claim by relying on her deposition testimony that she was confined to home and bed for just two days after the accident (see Frias v. Son Tien Liu, 107 A.D.3d 589, 590, 967 N.Y.S.2d 382 [1st Dept.2013] ).