Summary
holding that determination on whether bursitis rose to the level of serious injury was issue for the trier of fact
Summary of this case from Williams v. United StatesOpinion
2012-01-26
Krystal PAULINO, Plaintiff–Appellant, v. Christian RODRIGUEZ, et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, New York (Michael H. Zhu of counsel), for appellant. Law Offices of Edward M. Eustace, White Plains (Heath A. Bender of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, New York (Michael H. Zhu of counsel), for appellant. Law Offices of Edward M. Eustace, White Plains (Heath A. Bender of counsel), for respondents.
MAZZARELLI, J.P., SAXE, CATTERSON, ACOSTA, ROMÁN, JJ.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about July 14, 2010, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint for failure to satisfy the “serious injury” threshold of Insurance Law § 5102(d), unanimously modified, on the law, to the extent of denying the motion with respect to plaintiff's claim of serious injury to her left shoulder, and otherwise affirmed, without costs.
Defendants met their prima facie burden of establishing their entitlement to judgment as a matter of law. Defendants demonstrated that plaintiff did not suffer a serious injury to her cervical spine, lumbar spine, or left shoulder by relying on the medical reports of plaintiff's treating physician which concluded, approximately four months after the accident, that she had full ranges of motion and that the MRIs of her cervical and lumbar spine were normal ( see Insurance Law § 5102[d]; Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002]; Newton v. Drayton, 305 A.D.2d 303, 304, 760 N.Y.S.2d 38 [2003] ).
In opposition, plaintiff raised an issue of fact regarding the injury to her left shoulder. Plaintiff's subjective complaints of persistent pain were substantiated by objective medical evidence, including an MRI of her left shoulder, taken approximately two weeks after the accident, which showed the presence of fluid in her subscapular bursa, consistent with the diagnosis of bursitis. Plaintiff also submitted medical evidence that she tested positive for a painful arc test and an impingement sign test, suffered persistent pain despite conservative treatment, and continued to exhibit range of motion deficits in her left shoulder even after undergoing arthroscopic surgery ( see Morris v. Cisse, 58 A.D.3d 455, 871 N.Y.S.2d 113 [2009]; Jones v. Norwich, 283 A.D.2d 809, 725 N.Y.S.2d 131 [2001] ). Since injuries may worsen over time, evidence of contemporaneous range of motion limitations is not a prerequisite to plaintiff's claim ( Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ).
Plaintiff submitted no further evidence of serious injury to her spine. However, if the trier of fact determines that a serious injury has been sustained, it may award damages for all injuries causally related to the accident ( see Linton v. Nawaz, 14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010]; Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549–550, 898 N.Y.S.2d 110 [2010] ).
Plaintiff did not plead a 90/180–day claim in her bill of particulars. In any event, defendants established that plaintiff returned to her part-time job within one month after the accident and there was no medical determination that she was unable to engage in substantially all of her material and customary daily activities for 90 out of the first 180 days after the accident ( see Torain v. Bah, 78 A.D.3d 588, 913 N.Y.S.2d 27 [2010] ).