Opinion
21609/2005.
Decided October 6, 2008.
Lloyd Goldstein Esq., New York, NY, For Plaintiff.
Michael Pressman Esq., New York, NY, For Prince Defendant.
Hal Roberts Esq., Voute, Lohrink, Magro Collins, White Plains, NY, For Defendant Franco.
I. BACKGROUND
Plaintiff sues to recover for personal injuries sustained October 6, 2002, in a collision between a motor vehicle owned by defendant Dinorah Prince and operated by defendant Luis Prince and a motor vehicle owned and operated by defendant Franco, in which plaintiff was a passenger. The Prince defendants and defendant Franco separately move for summary judgment dismissing the complaint, C.P.L.R. § 3212(b), on the ground that plaintiff has not sustained a "serious injury" entitling her to recover for "non-economic loss." NY Ins. Law §§ 5102(d), 5104(a). For the reasons explained below, the court grants defendants' motions to the limited extent set forth, but denies their motions in all other respects.
II. DEFENDANTS' EVIDENCE REGARDING SERIOUS INJURY
A. Significant or Permanent Consequential Limitation
The Prince defendants' neurologist, Daniel Feuer M.D., based on his examination of plaintiff, found no neurological abnormalities in her cervical or lumbar spine. Because he found no abnormal functioning of her spine, his failure to comment on magnetic resonance imaging (MRI) reports that he reviewed, even though they show a herniated disc at her C4-C5 level and bulging discs at her C6-C7 and L4-L5 levels, does not undermine his conclusion that plaintiff did not sustain a permanent or significant limitation of functioning from the collision. Onishi v. N B Taxi, Inc. , 51 AD3d 594 , 595 (1st Dep't 2008); Santana v. Khan , 48 AD3d 318 (1st Dep't 2008); Style v. Joseph , 32 AD3d 212 , 214 (1st Dep't 2006); Servones v. Toribio , 20 AD3d 330 (1st Dep't 2005).
Although the Prince defendants' orthopedist, Philip K. Keats M.D., based on his examination of plaintiff, found a 33% restriction in lateral flexion and a 12.5% restriction in lateral rotation of her cervical spine, he found no underlying objective cervical condition other than a "resolved" sprain and no abnormal condition or functioning in her lumbar spine. Aff. of Steven H. Cohen, Ex. F at 3. See Navedo v. Jaime , 32 AD3d 788 , 789 (1st Dep't 2006); Colon v. Kempner , 20 AD3d 372 , 374 (1st Dep't 2005). Because his examination revealed significant retrictions in plaintiff's range of motion, in contrast to Dr. Feuer's evaluation, Dr. Keats's failure to address the positive findings from the MRIs, even if in inadmissible reports, undermines both his conclusion and defendants' showing through Dr. Feuer that plaintiff did not sustain a permanent or significant limitation. Caballero v. Fev Taxi Corp. , 49 AD3d 387 (1st Dep't 2008); Offman v. Singh , 27 AD3d 284 , 285 (1st Dep't 2006); Coppage v. Svetlana Hacking Corp. , 31 AD3d 366 (2d Dep't 2006); Browdame v. Candura , 25 AD3d 747 , 748 (2d Dep't 2006). See McNair v. Lee , 24 AD3d 159, 160 (1st Dep't 2005); Nix v. Yang Gao Xiang , 19 AD3d 227 (1st Dep't 2005); Abbadessa v. Rogers , 40 AD3d 665 (2d Dep't 2007); Kouvaras v. Hertz Corp. , 27 AD3d 529 , 530 (2d Dep't 2006).
Defendant Franco adopts the Princes' evidence. Given Dr. Keats's inconclusive findings, which also conflict with the findings of defendants' neurologist, defendants together fail to demonstrate that plaintiff did not sustain a serious injury in the categories of permanent or significant limitation of functioning. Martinez v. Pioneer Transp. Corp. , 48 AD3d 306 , 307 (1st Dep't 2008); Offman v. Singh, 27 AD3d at 286; Nix v. Yang Gao Xiang , 19 AD3d 227 .
B. Impairment Preventing Substantially All Plaintiff's Activities for 90 of the 180 Days After the Collision
Plaintiff testified at her deposition that her injury from the collision did not affect her attendance at or ability to work. The only activities she identified as affected at any time after the collision were part of her exercise routine at her gym. Thus defendants demonstrate that plaintiff did not sustain a medically determined injury or impairment that prevented her from performing substantially all her daily activities for 90 of the 180 days following the collision. Brantley v. New York City Transit Auth. , 48 AD3d 313 (1st Dep't 2008); Alexander v. Garcia , 40 AD3d 274 (1st Dep't 2007); Thompson v. Abbasi , 15 AD3d 95 , 101 (1st Dep't 2005); Flores v. Singh , 13 AD3d 203 , 204 (1st Dep't 2004). Plaintiff presents no medical evidence in rebuttal to support the functional disability required to raise a factual issue of an impairment that prevented substantially all her daily activities for 90 of the 180 days following the collision. Uddin v. Cooper , 32 AD3d 270 , 271-72 (1st Dep't 2006); Grimes-Carrion v. Carroll , 17 AD3d 296 , 297 (1st Dep't 2005); Thompson v. Abbasi, 15 AD3d at 101; Copeland v. Kasalica , 6 AD3d 253 , 254 (1st Dep't 2004).
III. CONCLUSION
Consequently, the court grants defendants' motions for summary judgment to the limited extent of dismissing any claim of a serious injury under the 90 out of 180 days category, but otherwise denies their motions. C.P.L.R. § 3212(b) and (e); NY Ins. Law § 5102(d); Alexander v. Garcia , 40 AD3d 274 ; Ferguson v. Budget Rent-A-Car , 21 AD3d 730 , 731 (1st Dep't 2005). See Toussaint v. Claudio , 23 AD3d 268 , 269 (1st Dep't 2005).