The chiropractor opined that plaintiff's injuries and permanent limitations were causally related to the accident ( see Perl v. Meher, 18 N.Y.3d 208, 218โ219, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011];Linton v. Nawaz, 62 A.D.3d 434, 879 N.Y.S.2d 82 [2009],affd.14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010] ). He also disagreed with the finding of defendant's radiologist that there are degenerative changes at L5/S1 ( Seck v. Balla, 92 A.D.3d 543, 938 N.Y.S.2d 549 [2012] ). The alleged gap in plaintiff's treatment was adequately explained in that plaintiff reached the maximum benefits for active physiotherapy in April 2006 ( see e.g. Bonilla v. Abdullah, 90 A.D.3d 466, 933 N.Y.S.2d 682 [2011] ).
To the extent the radiologist opined, without any elaboration, that any discogenic changes were either age-related or a co-morbidity of โincreased body habitus/obesity,โ the opinion is insufficient, in light of the fact that plaintiff was 29 years old at the time of the accident, to shift the burden on the issue of causation of the spinal injuries ( see De La Cruz v. Hernandez, 84 A.D.3d 652, 924 N.Y.S.2d 57 [1st Dept.2011] ). In opposition, plaintiff raised a triable issue of fact with respect to whether he sustained serious injuries in his cervical and lumbar spine by submitting affirmed reports of a radiologist and physician who found bulging and/or herniated discs shown in the MRIs taken shortly after the accident, and continuing range-of-motion deficits of those body parts ( see Duran v. Kabir, 93 A.D.3d 566, 941 N.Y.S.2d 50 [1st Dept.2012]; Seck v. Balla, 92 A.D.3d 543, 938 N.Y.S.2d 549 [1st Dept.2012] ). Although the report of the osteopath who treated plaintiff after the accident is unaffirmed, plaintiff is not required to present contemporaneous range of motion findings in order to establish serious injury, and his testimony, together with the osteopath's report and the MRIs taken shortly after the accident, was sufficient to demonstrate a causal link between his claimed spinal injuries and the accident ( see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011];Biascochea v. Boves, 93 A.D.3d 548, 549, 940 N.Y.S.2d 599 [1st Dept.2012]. Further, his expert treating physician opined, after examination, that his injuries were causally related to the accident ( see June v. Akhtar, 62 A.D.3d 427, 878 N.Y.S.2d 59 [1st Dept.2009] ).
However, plaintiff failed to explain adequately the gap in treatment from six months or a year after the February 2008 accident through February 2011 ( see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ). Plaintiff's admission at deposition that he returned to work two days after the accident established as a matter of law that he did not suffer a 90/180โday injury ( see Seck v. Balla, 92 A.D.3d 543, 938 N.Y.S.2d 549 [1st Dept.2012] ).
However, plaintiff's treating orthopedic surgeon, who reviewed the results of plaintiff's X rays and MRI scans, opined that the accident was the โcompetent and producing cause of [plaintiff's] spinal conditions by means of activation aggravation of his lumbar stenosis and degenerative spondylosis and causing worsening of the disc herniations in the lumbar spine.โ Thus, plaintiff raised a triable issue of fact with respect to causation ( see Seck v. Balla, 92 A.D.3d 543, 544, 938 N.Y.S.2d 549). We further conclude that plaintiff's submissions contain the requisite objective medical findings sufficient to raise issues of fact whether plaintiff sustained a serious injury under both categories of serious injury alleged by him ( see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Roll v. Gavitt, 77 A.D.3d 1412, 1413, 910 N.Y.S.2d 330).
The treating physician also reported quantified range-of-motion limitations and positive tests during the course of treatment ( see Williams v. Tatham, 92 A.D.3d 472, 473, 938 N.Y.S.2d 75 [1st Dept. 2012] ). The treating physician's affirmation also raised a triable issue of fact as to causation, as she opined that plaintiff's injuries were causally related to the accident based on, among other things, the fact that plaintiff was asymptomatic and had an active lifestyle for several years before the accident ( see Perl v. Meher, 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011];Seck v. Balla, 92 A.D.3d 543, 544, 938 N.Y.S.2d 549 [1st Dept. 2012] ). As to the 90/180โday claim, although defendant did not submit any evidence disproving plaintiff's testimony that she was unable to work for six months due to a medically determined injury, he met his prima facie burden by submitting evidence that plaintiff's injuries were not caused by the accident ( see James v. Perez, 95 A.D.3d 788, 789, 945 N.Y.S.2d 283 [1st Dept. 2012] ). Plaintiff, however, raised an issue of fact and established prima facie existence of a 90/180โday injury by submitting her physician's affirmation stating that the injuries caused by the accident prevented plaintiff from working and performing her regular daily activities during the requisite period, that plaintiff returned to work six months after the accident against the doctor's medical advice, and that plaintiff was partially disabled during the period ( see Williams, 92 A.D.3d at 473, 938 N.Y.S.2d 75). Thus, defendant was properly denied summary judgment, and the issue of fact as to cau
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 90/180โday serious injury claim.
Indeed, in Echevarria v Ocasio (135 A.D.3d 661,662 [1st Dept 2016]), the First Department affirmed dismissal of a 90/180-day claim based on plaintiffs "deposition testimony that she returned to work immediately after the accident, and was not confined to bed or home during the relevant period" (see also Seek v Balla, 92 A.D.3d 543, 544 [dismissing plaintiffs 90/180-day claim as her "deposition testimony and the report of her treating osteopath [show that] she returned to work part-time four days after the accident"]). Further, plaintiff was not required to curtail her daily activities during the requisite period (compare with Williams v Tatham, 92 A.D.3d 472, 473 [1st Dept 2012] [reversing dismissal of 90/180-day claim where plaintiffs chiropractor "concluded that as a result of this accident plaintiff sustained an injury to her spine, and...advised her to refrain from engaging in certain activities, such as cleaning, shopping, and walking"]).
As in Holloman, 162 AD3d 423, 424, "[p]laintiff's physiatrist adequately addressed the issue of causation by opining that the injuries were the direct result of the accident, and offering a different, yet equally plausible, explanation for them." Moreover, the Court finds that even if defendant met its burden of establishing a serious injury, it was also adequately rebutted by Dr. Goldenberg's detailed findings (see Amaro v Am. Med. Response of New York, Inc., 99 AD3d 563, 564 [1st Dept 2012] ["Plaintiff's physicians also addressed the defense expert's findings of degeneration by opining that his injuries were causally related to the accident"]; Pietropinto v Benjamin, 104 AD3d 617, 617 [1st Dept 2013] [same]; Munoz v Robinson, 170 AD3d 414 [1st Dept 2019] [same]; Seck v Balla, 92 AD3d 543, 544 [1st Dept 2012] [holding that "questions about the credibility of the conflicting doctors' opinions are for the jury to resolve"]).
The record is devoid of any evidence to demonstrate that plaintiff Imbriano or plaintiff Gallo sustained a medically determined injury that prevented either of them from performing substantially all of his customary and daily activities for 90 of the 180 days immediately following the accident. Plaintiffs' deposition testimony establishes that neither was confined to bed and/or home for the required period (Seek v Bella, 92 A.D.3d 543, 544 [1st Dept 2012]). Accordingly, defendants' motions to dismiss as to both plaintiffs for failure to prove either sustained a serious injury are granted and the complaints dismissed.
In the present case, plaintiff's testimony that she was not confined to her home and returned to work shortly after the accident negates any claim based on this category of injury. (See Vasquez v Almanzar, 107 A.D.3d 538, 541, 967 N.Y.S.2d 361 [1st Dept. 2013]; Seek v. Balla, 92 A.D.3d 543, 938 N.Y.S.2d 549 [1st Dept. 2012] [plaintiff's claim under the 90/180-day prong of ยง 5102 (d) failed as a matter of law because, according to plaintiff's own deposition testimony and the report of her treating osteopath, she returned to work part-time four days after the accident]).