Opinion
12298 Index No. 301828/16 Case No. 2019-4243
11-10-2020
Kadian SMITH, Plaintiff–Appellant, v. Heather GREEN, Defendant–Respondent.
Pollack Pollack Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. DeSena & Sweeney, LLP, Bohemia (Shawn P. O'Shaughnessy of counsel), for respondent.
Pollack Pollack Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
DeSena & Sweeney, LLP, Bohemia (Shawn P. O'Shaughnessy of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Mazzarelli, Moulton, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about April 17, 2019, which, inter alia, granted defendant's motion for summary judgment dismissing plaintiff's claims of "permanent consequential" and "significant limitation of use" of his left knee and left shoulder, "permanent consequential" limitation of use of his cervical and lumbar spine, and 90/180-day injury under Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to plaintiff's claim of "significant limitation of use" of his left shoulder and otherwise affirmed, without costs.
Defendants demonstrated prima facie through their expert's affirmed reports that plaintiff's claimed injuries to his knee, shoulder and spine had resolved without significant or permanent consequential limitations, and that his left shoulder injuries were degenerative in nature.
In opposition, plaintiff raised a triable issue of fact with respect to his claim of significant limitation of use to his left shoulder, as his medical records show that he sought treatment for left shoulder pain contemporaneously with the accident. He also demonstrated limitations in range of motion on physical examination, which continued until his doctor performed arthroscopic surgery to repair tears shown on MRIs, and his doctor opined that the conditions observed during surgery were not degenerative (see Bonilla v. Vargas–Nunez, 147 A.D.3d 461, 46 N.Y.S.3d 594 [1st Dept. 2017] ; Pinzon v. Gonzalez, 93 A.D.3d 615, 941 N.Y.S.2d 113 [1st Dept. 2012] ). This evidence was sufficient to raise an issue of fact as to plaintiff's claim of "significant limitation of use" in his left shoulder (see Holmes v. Brini Tr. Inc., 123 A.D.3d 628, 629, 1 N.Y.S.3d 27 [1st Dept. 2014] ). However, the physician's findings of substantial improvement in plaintiff's left shoulder, with normal or near-normal range of motion post-operatively, preclude a finding of "permanent consequential" injury (see id. ).
The court properly found that plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury to his left knee, since his medical records showed largely normal ranges of motion and a minimal course of treatment (see Cabrera v. Apple Provisions, Inc., 151 A.D.3d 594, 596, 57 N.Y.S.3d 471 [1st Dept. 2017] ; Rose v. Tall, 149 A.D.3d 554, 52 N.Y.S.3d 339 [1st Dept. 2017] ). His claims of "permanent consequential" limitations of use of his cervical and lumbar spine also fail because plaintiff provided no evidence of continuing limitations in or treatment of those parts beyond four months after the accident (see Arias v. Martinez, 176 A.D.3d 548, 112 N.Y.S.3d 18 [1st Dept. 2019] ; Tejada v. LKQ Hunts Point Parts, 166 A.D.3d 436, 88 N.Y.S.3d 156 [1st Dept. 2018] ).
Defendant properly relied on plaintiff's own testimony that he returned to work only three days after the accident and continued to work until the date of the deposition, thus defeating his 90/180-day claim (see Pakeman v. Karekezia, 98 A.D.3d 840, 841, 950 N.Y.S.2d 378 [1st Dept. 2012] ).