Opinion
No. 570123/12.
2012-05-10
Loida ORTIZ–ROMAN, Plaintiff–Respondent, v. Daniel Peter ANGUN, Defendant, and Luis O. Reynoso and Simon Perez, Defendants–Appellants.
Defendants Luis O. Reynoso and Simon Perez appeal from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered April 20, 2011, which denied their motion for summary judgment dismissing the complaint as against them.
Present: LOWE, III, P.J., SCHOENFELD, HUNTER, JR., JJ.
PER CURIAM.
Order (Raul Cruz, J.), entered April 20, 2011, affirmed, with $10 costs.
Defendants met their prima facie burden of demonstrating that plaintiff did not sustain a serious injury (Insurance Law § 5102[d] ), by tendering affirmed reports of a neurologist, who found normal ranges of motion, and of a radiologist, who found degeneration and a congenital condition in plaintiff's spine with no evidence of acute injury ( see Fuentes v. Sanchez, 91 A.D.3d 418, 419 [2012] ).
In opposition, plaintiff raised a triable issue with the affirmed report of her treating physician, who measured limitations of motion of plaintiff's cervical and lumbar spines, both shortly after the vehicular accident and approximately five years thereafter, and by providing medical reports of a bulging disc and radiculopathy shown by objective testing. Plaintiff adequately addressed defendants' evidence of preexisting degenerative and congenital conditions. Plaintiff's treating doctor concluded that, since plaintiff had been asymptomatic and working at the time of the accident, her current complaints and measurable limitations were due to the accident ( see Seck v. Balla, 92 A.D.3d 543, 544 [2012];Fuentes v. Sanchez, 91 A.D.3d at 420, 936 N.Y.S.2d 151). Any questions as to the credibility of the conflicting doctors' opinions are for the factfinder to resolve ( see Perl v. Meher, 18 N.Y.3d 208, 219 [2011] ).
Plaintiff also raised an issue of fact with respect to her 90/180–day serious injury claim. In this connection, plaintiff's treating physician stated that, upon examination and testing of plaintiff, she cautioned plaintiff to refrain from engaging in many household activities while plaintiff was in physical therapy, and determined that plaintiff was medically disabled for five months after the accident ( see Williams v. Tatham, 92 A.D.3d 472, 473 [2012];cf. Ramos v. Rodriguez, 93 A.D.3d 473 [2012] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.