Opinion
10144 Index 302530/14
10-22-2019
Yefri ARIAS, Plaintiff–Appellant, v. Alexander MARTINEZ, et al., Defendants–Respondents.
Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville (Michael E. Bergman of counsel), for appellant. Law Offices of Moira Doherty, P.C., Bethpage (Charles R. Gueli of counsel), for Alexander Martinez, respondent. Robert D. Grace, Brooklyn, for DTG Enterprise Inc. and Luis A. Marcial, respondents.
Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville (Michael E. Bergman of counsel), for appellant.
Law Offices of Moira Doherty, P.C., Bethpage (Charles R. Gueli of counsel), for Alexander Martinez, respondent.
Robert D. Grace, Brooklyn, for DTG Enterprise Inc. and Luis A. Marcial, respondents.
Acosta, P.J., Richter, Mazzarelli, Webber, Kern, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about September 25, 2018, which granted defendants' motion and cross motion for summary judgment dismissing the complaint for lack of a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motions as to plaintiff's claim of significant limitation of use of the lumbar spine, and otherwise affirmed, without costs.
Plaintiff alleges that he sustained serious injuries to his lumbar spine and right knee as the result of a motor vehicle accident. Defendants established prima facie that plaintiff did not suffer either a permanent consequential limitation of use or a significant limitation of use of either claimed body part through the affirmed reports of their expert radiologist, who opined that the MRIs of those body parts showed no evidence of injury (see Pastora L. v. Diallo, 167 A.D.3d 424, 424, 88 N.Y.S.3d 185 [1st Dept. 2018] ; Hernandez v. Marcano, 161 A.D.3d 676, 677, 78 N.Y.S.3d 54 [1st Dept. 2018] ), and their emergency medicine physician, who opined that plaintiff's emergency room records were inconsistent with his claimed traumatic injuries (see Hayes v. Gaceur, 162 A.D.3d 437, 438, 79 N.Y.S.3d 119 [1st Dept. 2018] ; Moore–Brown v. Sofi Hacking Corp., 151 A.D.3d 567, 567, 57 N.Y.S.3d 38 [1st Dept. 2017] ). Defendants also demonstrated that plaintiff effectively ceased all treatment for his claimed injuries following a discectomy several months after the accident, which shifted the burden to plaintiff to provide a reasonable explanation (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ; Jackson v. Doe, 173 A.D.3d 505, 506, 104 N.Y.S.3d 90 [1st Dept. 2019] ).
In opposition, plaintiff failed to raise a triable issue of fact as to his claimed right knee injury since he submitted no admissible medical evidence concerning that body part (see Pouchie v. Pichardo, 173 A.D.3d 643, 644, 105 N.Y.S.3d 410 [1st Dept. 2019] ). As to his claimed lumbar spine injury, plaintiff offered no explanation for his cessation of treatment after undergoing surgery on his lumbar spine, which interrupts the chain of causation and renders his treating physician's finding of permanency speculative (see Holmes v. Brini Tr. Inc., 123 A.D.3d 628, 628–629, 1 N.Y.S.3d 27 [1st Dept. 2014] ; see also Jackson, 173 A.D.3d at 506, 104 N.Y.S.3d 90 ; Alverio v. Martinez, 160 A.D.3d 454, 74 N.Y.S.3d 525 [1st Dept. 2018] ).
However, plaintiff raised a triable issue of fact as to whether he suffered a "significant limitation" of use of the lumbar spine through the affirmation of his treating physician, who documented limitations in range of motion at an examination after the accident, opined that plaintiff's MRIs showed disc bulges and a herniation for which surgery was indicated, and causally related the conditions to the accident (see Hayes, 162 A.D.3d at 438, 79 N.Y.S.3d 119 ; Holmes v. Brini Tr. Inc., 123 A.D.3d at 628–629, 1 N.Y.S.3d 27 ; Paulling v. City Car & Limousine Servs., Inc., 155 A.D.3d 481, 481, 65 N.Y.S.3d 19 [1st Dept. 2017] ; Mejia v. Ramos, 124 A.D.3d 449, 450, 1 N.Y.S.3d 73 [1st Dept. 2015] ; see generally Vasquez v. Almanzar, 107 A.D.3d 538, 539, 967 N.Y.S.2d 361 [1st Dept. 2013] ["a significant limitation ... need not be permanent in order to constitute a serious injury"] ).
Should a jury determine that plaintiff has met the threshold for serious injury, it may award damages for any other "injuries causally related to the accident, even those not meeting the serious injury threshold" ( Pouchie, 173 A.D.3d at 645, 105 N.Y.S.3d 410 ; see Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549, 898 N.Y.S.2d 110 [1st Dept. 2010] ).
Finally, defendants established their prima facie entitlement to dismissal of plaintiff's 90/180–day claim through the submission of plaintiff's deposition testimony, in which he testified that he missed only one week of work following the accident (see Pouchie, 173 A.D.3d at 645, 105 N.Y.S.3d 410 ). In opposition, plaintiff did not submit any evidence sufficient to raise an issue of fact (see id. ; Rosa–Diaz v. Maria Auto Corp., 79 A.D.3d 463, 464, 913 N.Y.S.2d 51 [1st Dept. 2010] ).