Moreno v. Delcid

8 Citing cases

  1. Meyer v. AFGD, Inc.

    140 F. Supp. 2d 179 (N.D.N.Y. 2001)   Cited 3 times

    Finally, he states that his physical examination of Plaintiff also showed that her forward flexion was markedly decreased to about 10 to 15 degrees. In sum, Dr. Goldberg's affidavit reveals that Mrs. Meyer's diagnosed conditions of chronic C6 radiculitis and left shoulder impingement syndrome, which he states have already lasted over two years and will be, to some degree, permanent, are supported by objective medical observations and constitute a significant limitation on the use of her neck, arm, and shoulder. New York courts have consistently held that evidence of this type raises a genuine issue of material fact as to whether the plaintiff suffers from a serious injury. See, e.g., Lopez, 494 N.Y.S.2d 101, 484 N.E.2d at 131 (10 degree limitation on neck movement); Parker v. Defontaine-Stratton, 231 A.D.2d 412, 647 N.Y.S.2d 189, 190 (N.Y.A.D. 1st Dep't 1996) (quantified limitations in movement based on physical examination sufficient); Moreno v. Delcid, 262 A.D.2d 464, 692 N.Y.S.2d 125, 126 (N.Y.A.D.2d Dep't 1999) (herniated disc); Torres v. Micheletti, 208 A.D.2d 519, 616 N.Y.S.2d 1006, 1007 (N.Y.A.D.2d Dep't 1994) (herniated discs); Cesar v. Felix, 181 A.D.2d 852, 581 N.Y.S.2d 411, 412 (N.Y.A.D.2d Dep't 1992) (markedly restricted movement of neck); Spezia v. De Marco, 173 A.D.2d 462, 570 N.Y.S.2d 87, 88 (N.Y.A.D.2d Dep't 1991) (10 degree limitation in neck mobility); Guerra v. Fuez, 145 A.D.2d 873, 536 N.Y.S.2d 200, 201 (N.Y.A.D.3d Dep't 1989) (aggravation of arthritic condition); Zavialov, 2000 WL 133846, at *5; Nasrallah, 1998 WL 152568, at *6 (citing cases); Morrone, 1998 WL 872419, at *4 (citing cases). Moreover, the conflicting physician affidavit submitted by Defendants raises a factual dispute regarding the severity of Mrs. Meyer's injuries.

  2. Pech v. Yael Taxi Corp.

    303 A.D.2d 733 (N.Y. App. Div. 2003)   Cited 28 times
    Holding that a showing of quantified restrictions in the range of motion of the cervical spine defeats a motion for summary judgment for type 7 injury

    In opposition to the motion for summary judgment, the plaintiff, inter alia, submitted magnetic resonance imaging (hereinafter MRI) reports taken approximately two months after the accident which revealed disc bulges in the cervical and lumbar portions of her spine. She also submitted an affirmation from a physician, and a medical report from another physician, which quantified restrictions in the range of motion of the plaintiff's cervical and lumbar spine based on both initial and recent examinations (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Abedin v. Tynika Motors, 279 A.D.2d 595; Moreno v. Delcid, 262 A.D.2d 464, 465). The unsworn medical report of one of the physicians and the MRI reports were initially relied upon by the defendants, and were therefore properly before the court (see Raso v. Statewide Auto Auction, 262 A.D.2d 387). These submissions were sufficient to raise a triable issue of fact as to whether the plaintiff sustained a permanent or consequential limitation of the use of her cervical and lumbar spine (see Jacobowitz v. Roventini, 302 A.D.2d 432 [2d Dept., Feb. 10, 2003]).

  3. Spina v. Melvin

    289 A.D.2d 956 (N.Y. App. Div. 2001)   Cited 1 times

    Memorandum: Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Although defendant met his initial burden on the motion, plaintiff raised a triable issue of fact by her own affidavit and that of her treating chiropractor ( see, Rodriguez v. Duggan, 266 A.D.2d 859; see also, Moreno v. Delcid, 262 A.D.2d 464, 465; Nathanson v. David, 244 A.D.2d 930).

  4. LaFalce v. Alexandrov

    288 A.D.2d 271 (N.Y. App. Div. 2001)   Cited 1 times

    The plaintiff gave a reasonable excuse for his delay in answering the motion for summary judgment ( see, Matter of Kaufman v. Board of Educ. of City School Dist. of City of N.Y., 210 A.D.2d 226). Furthermore, the plaintiff demonstrated that he has a meritorious cause of action ( see, Abedin v. Tynika Motors, 279 A.D.2d 595; Martin v. JL Distribs., 274 A.D.2d 420; Moreno v. Delcid, 262 A.D.2d 464; Petrone v. Thornton, 166 A.D.2d 513). SANTUCCI, J.P., ALTMAN, FLORIO, H. MILLER and COZIER, JJ., concur.

  5. Kominik v. Rodriguez

    273 A.D.2d 358 (N.Y. App. Div. 2000)   Cited 2 times

    The Supreme Court properly denied that branch of the appellants' motion which was for summary judgment on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). While the appellants made a prima facie showing that the plaintiff did not sustain a serious injury, the plaintiff submitted sufficient evidence to raise a triable issue of fact (see, Moreno v. Delcid, 262 A.D.2d 464).

  6. Mulvey v. Berman

    271 A.D.2d 587 (N.Y. App. Div. 2000)   Cited 1 times

    ORDERED that the order is affirmed, with costs. In opposition to the defendants' motion for summary judgment, the plaintiff submitted sufficient evidence in the form of a chiropractor's affidavit to create a triable issue of fact as to whether she sustained a serious injury within the meaning ofInsurance Law § 5102(d) (see, Outcalt v. Wang, 269 A.D.2d 435 [2d Dept., Feb. 14, 2000]; Moreno v. Delcid, 262 A.D.2d 464).

  7. Outcalt v. Wang

    269 A.D.2d 435 (N.Y. App. Div. 2000)   Cited 1 times

    ORDERED that the order is affirmed, with costs. The plaintiff submitted sufficient evidence in the form of a physician's affirmation to create a triable issue of fact as to whether she suffered a significant limitation of use of a body function or system pursuant to Insurance Law § 5102 (d) (see, Moreno v. Delcid, 262 A.D.2d 464 [2d Dept., June 14, 1999]; Meyer v. Gallardo, 260 A.D.2d 556; Lombardi v. Columbo, 259 A.D.2d 524).

  8. Dillon v. Thomas

    266 A.D.2d 183 (N.Y. App. Div. 1999)   Cited 5 times

    In support of their motions for summary judgment, the defendants submitted, inter alia, a report prepared by the plaintiff's radiologist which stated that a magnetic resonance image taken of the plaintiff's lumbar spine four days after the accident revealed "[d]esiccation * * * at the L5-S1 level" and "[b]ulging to the L5-S1 intervertebral disc". They further submitted the medical reports of the plaintiff's own treating orthopedist which specified the degree of limitation in the range of motion of the plaintiff's lumbar and cervical spines and asserted that these injuries are "causally related" to the subject accident and are permanent. Accordingly, the defendants' respective motion papers failed to establish a prima facie case that the plaintiff's injuries were not serious within the meaning of Insurance Law § 5102(d) (see, Moreno v. Delcid, 262 A.D.2d 464; [2d Dept., June 14, 1999]; Faruque v. Ponce, 259 A.D.2d 464; [2d Dept., Mar. 1, 1999];Rosmarin v. Lamontanaro, 238 A.D.2d 567; Thomas v. Joyner, 237 A.D.2d 347). MANGANO, P.J., RITTER, JOY, McGINITY, and SMITH, JJ., concur.