Bonilla v. Vargas–Nunez

• Citation: 147 A.D.3d 461,2017 N.Y. Slip Op. 00940,46 N.Y.S.3d 594
• Parties: Sonia BONILLA, Plaintiff–Respondent, v. P.A. VARGAS–NUNEZ, Defendant–Respondent, Jesus Bravo, et al., Defendants–Appellants.
• Decision Date: 07 February 2017
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 461

46 N.Y.S.3d 594

2017 N.Y. Slip Op. 00940

Sonia BONILLA, Plaintiff–Respondent,

v.P.A. VARGAS–NUNEZ, Defendant–Respondent,Jesus Bravo, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Feb. 7, 2017.

Richard T. Lau & Associates, Jericho (Christine A. Hilcken of counsel), for appellants.

Law Offices of Mark B. Rubin, Bronx (Mark B. Rubin of counsel), for Sonia Bonilla, respondent.

Marjorie E. Bornes, Brooklyn, for P.A. Vargas–Nunez, respondent.

FRIEDMAN, J.P., ANDRIAS, MOSKOWITZ, KAPNICK, KAHN, JJ.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered August 18, 2015, which, among other things, denied the branch of defendants-appellants' cross motion for summary judgment dismissing plaintiff's claims of a "permanent consequential" or "significant" limitation to her left shoulder within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

The motion court correctly determined that in opposition to defendants' prima facie showing of the lack of a serious injury, plaintiff raised a triable issue of fact as to whether she sustained a permanent consequential or significant limitation to her left shoulder causally related to the parties' motor vehicle accident (see Shinn v. Catanzaro, 1 A.D.3d 195, 197, 767 N.Y.S.2d 88 [1st Dept.2003] ). Plaintiff submitted evidence that she sought medical treatment for her shoulder shortly after the accident and that she received MRI testing on the shoulder approximately two months later, which is sufficient to show contemporaneous treatment (see Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ). The MRI revealed tears in the shoulder, and plaintiff's expert's examination revealed that, several years after the accident, plaintiff had limitations of motion in the shoulder, which the expert causally related to the accident (see Kone v. Rodriguez, 107 A.D.3d 537, 538, 967 N.Y.S.2d 359 [1st Dept.2013] ).

If a trier of fact determines that plaintiff sustained a serious left shoulder injury, plaintiff is entitled to recover damages for all injuries causally related to the accident (see Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549–550, 898 N.Y.S.2d 110 [1st Dept.2010] ).