Opinion
9883 Index 303251/15
09-24-2019
Lamar BLAKE, Plaintiff–Appellant, v. Pierre CADET, et al., Defendants–Respondents, N.Y. Kind Taxi Corp., et al., Defendants.
Mirman, Markovitz & Landau, P.C., New York (David Weissman of counsel), for appellant. Robert D. Grace, Brooklyn, for respondents.
Mirman, Markovitz & Landau, P.C., New York (David Weissman of counsel), for appellant.
Robert D. Grace, Brooklyn, for respondents.
Sweeny, J.P., Richter, Kapnick, Kern, Singh, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about July 25, 2018, which granted defendants Pierre Cadet and K. Khan, M.D.'s (defendants) motion to vacate a prior order denying their motion for summary judgment dismissing the complaint for failure to meet the serious injury threshold of Insurance Law § 5102(d), and, upon vacatur, to grant the motion for summary judgment, unanimously modified, on the law, to deny the motion for summary judgment as to the claim of significant limitation of use of the lumbar spine, and otherwise affirmed, without costs.
The court providently exercised its discretion in treating the motion to vacate as one for renewal and granting it, since defendants demonstrated that their failure to include their codefendants' answer in support of the initial motion was inadvertent and excusable (see CPLR 2221[e][2], [3] ; Hernandez v. Marcano , 161 A.D.3d 676, 677, 78 N.Y.S.3d 54 [1st Dept. 2018] ).
Defendants established prima facie that plaintiff did not sustain any significant or permanent injury to his cervical spine or left shoulder and that his claimed lumbar spine injury was not causally related to the accident but was degenerative in nature (see e.g. Pouchie v. Pichardo , 173 A.D.3d 643, 644, 105 N.Y.S.3d 410 [1st Dept. 2019] ). Defendants also identified a two-year gap or cessation in plaintiff's medical treatment after he underwent a lumbar discectomy procedure (see Pommells v. Perez , 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
Plaintiff failed to raise a triable issue of fact as to his cervical spine and left shoulder claims, since he submitted neither objective evidence of injury to either body part nor evidence of recent limitations in range of motion in his left shoulder (see Vasquez v. Almanzar , 107 A.D.3d 538, 967 N.Y.S.2d 361 [1st Dept. 2013] ).
However, plaintiff raised an issue of fact as to causation with respect to his lumbar spine injuries through affirmations of his treating physicians, who opined that those injuries were traumatic in origin and causally related to the subject accident (see Fathi v. Sodhi , 146 A.D.3d 445, 44 N.Y.S.3d 406 [1st Dept. 2017] ; Yuen v. Arka Memory Cab Corp. , 80 A.D.3d 481, 915 N.Y.S.2d 529 [1st Dept. 2011] ). This evidence was sufficient to raise an issue of fact, given plaintiff's relatively young age and the absence of any evidence in his own medical records of prior injuries or of degeneration (see Sanchez v. Oxcin , 157 A.D.3d 561, 563, 69 N.Y.S.3d 623 [1st Dept. 2018] ). As plaintiff failed to explain the cessation of his treatment about 10 months after the accident, he did not raise an issue of fact as to his claim of "permanent consequential" injury (see Holmes v. Brini Tr. Inc. , 123 A.D.3d 628, 628–629, 1 N.Y.S.3d 27 [1st Dept. 2014] ). However, his medical evidence is sufficient to raise an issue of fact as to whether he sustained an injury involving "significant limitation of use" of his lumbar spine as a result of the subject accident (see id. ; see also Vasquez , 107 A.D.3d at 539, 967 N.Y.S.2d 361 ["a significant limitation ... need not be permanent in order to constitute a serious injury"] [internal quotation marks omitted] ). If a jury determines that plaintiff has met the threshold for serious injury, it may award damages for any injuries causally related to the accident, including those that do not meet the threshold ( Rubin v. SMS Taxi Corp. , 71 A.D.3d 548, 549, 898 N.Y.S.2d 110 [1st Dept. 2010] ).
Defendants established prima facie that plaintiff did not sustain a 90/180–day injury, through plaintiff's deposition testimony that he worked for several days during the months following the accident and that he was not advised by any of histreating medical providers to refrain from returning to work (see Pouchie , 173 A.D.3d at 645, 105 N.Y.S.3d 410 ; Echevarria v. Ocasio , 135 A.D.3d 661, 24 N.Y.S.3d 272 [1st Dept. 2016] ). Plaintiff failed to raise a triable issue of fact in opposition (see Pouchie , 173 A.D.3d at 645, 105 N.Y.S.3d 410 ; Rosa–Diaz v. Maria Auto Corp. , 79 A.D.3d 463, 464, 913 N.Y.S.2d 51 [1st Dept. 2010] ).