Opinion
2012-10-9
Ronald JACKSON, Plaintiff–Appellant, v. Anthony S.C. LEUNG, et al., Defendants–Respondents.
Goidel & Siegel, LLP, New York (Andrew B. Siegel of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for Anthony S.C. Leung, respondent.
Goidel & Siegel, LLP, New York (Andrew B. Siegel of counsel), for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for Anthony S.C. Leung, respondent.
Marjorie E. Bornes, Brooklyn, for Nicolas Rosillo, respondent.
SAXE, J.P., SWEENY, RICHTER, ABDUS–SALAAM, ROMÁN, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered April 14, 2011, which granted defendant Anthony Leung's motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), and order, same court and Justice, entered August 29, 2011, which, upon plaintiff's cross motion to reargue Leung's motion, adhered to its prior order, and granted defendant Nicolas Rosillo's motion for summary judgment on res judicata grounds, unanimously reversed, on the law, without costs, the cross motion granted, and the motions denied.
Defendant Leung failed to meet his prima facie burden of showing that plaintiff did not suffer a serious injury to his lumbar spine since his sole medical expert, a neurologist, did not report the results of any range of motion testing, review the MRI film of plaintiff's spine, or offer any alternative opinion as to causation ( see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011];Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002];McCree v. Sam Trans Corp., 82 A.D.3d 601, 920 N.Y.S.2d 35 [1st Dept. 2011] ). Moreover, defendant's neurologist acknowledged a 50% deficit in straight leg raising, which provides objective evidence of lumbar injury ( see Brown v. Achy, 9 A.D.3d 30, 32, 776 N.Y.S.2d 56 [1st Dept. 2004] ), and did not adequately explain that finding ( see Feaster v. Boulabat, 77 A.D.3d 440, 908 N.Y.S.2d 677 [1st Dept. 2010] ). Thus, the burden did not shift to plaintiff, who, in any event, raised an issue of fact with respect thereto by submitting the affirmation of his treating physician, who found recent limitations of range of motion in all planes, and relied on objective evidence, including an EMG/NCS study and MRI report ( see Colon v. Bernabe, 65 A.D.3d 969, 970, 886 N.Y.S.2d 376 [1st Dept. 2009];Brown v. Achy, 9 A.D.3d at 31–32, 776 N.Y.S.2d 56).
Furthermore, contrary to the Supreme Court's holding, it was not necessary for plaintiff to proffer evidence of range of motion deficits contemporaneous with the accident, and, in any event, the physician reported that such limitations existed then ( see Perl v. Meher, 18 N.Y.3d at 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424;Paulino v. Rodriguez, 91 A.D.3d 559, 559–560, 937 N.Y.S.2d 198 [1st Dept. 2012] ). Defendant Leung did not raise a gap in treatment argument in his motion papers ( Tadesse v. Degnich, 81 A.D.3d 570, 917 N.Y.S.2d 569 [1st Dept. 2011] ), and, in any event, plaintiff's treating physician proffered an explanation sufficient to raise an issue of fact ( see Pommells v. Perez, 4 N.Y.3d 566, 577, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005];Jean–Louis v. Gueye, 94 A.D.3d 504, 505, 942 N.Y.S.2d 52 [1st Dept. 2012] ).
The order purporting to deny plaintiff's cross motion to reargue addressed the merits and, in so doing, in effect, granted plaintiff's motion and, therefore, the appeal taken therefrom is properly before this Court ( see 21st Century Diamond, LLC v. Allfield Trading, LLC, 88 A.D.3d 558, 559 n. 1, 931 N.Y.S.2d 50 [1st Dept. 2011];Matter of State Farm Mut. Auto. Ins. Co. v. King, 304 A.D.2d 390, 756 N.Y.S.2d 752 [1st Dept. 2003] ). For the foregoing reasons, the cross motion to reargue should have been granted and, upon doing so, the order granting defendant Leung's motion denied, and defendant Rosillo's motion denied.