Ahmed v. Cannon

• Decision Date: 30 June 2015
• Docket Number: 15572, 303435/12
• Citation: 2015 N.Y. Slip Op. 05615,12 N.Y.S.3d 88,129 A.D.3d 645
• Parties: Mohammed AHMED, Plaintiff–Appellant, v. Donald CANNON, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 645
12 N.Y.S.3d 88
2015 N.Y. Slip Op. 05615

Mohammed AHMED, Plaintiff–Appellant
v.
Donald CANNON, Defendant–Respondent.

15572, 303435/12

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

June 30, 2015.

12 N.Y.S.3d 89

Mitchell Dranow, Sea Cliff, for appellant.

Russo & Toner, LLP, New York (Alexandra L. Alvarez of counsel), for respondent.

TOM, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, CLARK, JJ.

Opinion

129 A.D.3d 645

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered January 20, 2015, which granted defendant's motion

129 A.D.3d 646

for summary judgment dismissing the complaint on the threshold issue of serious injury under Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to the claims of significant and permanent consequential limitation of use of the lumbar spine and left shoulder and significant limitation of use of the right wrist, and otherwise affirmed, without costs.

Defendant established prima facie that plaintiff did not sustain a permanent consequential or significant limitation of use of the cervical spine by submitting his orthopedist's and neurologist's reports finding no significant limitations, negative clinical results, and a resolved sprain (see Thomas v. NYLL Mgt. Ltd., 110 A.D.3d 613, 973 N.Y.S.2d 625 [1st Dept.2013] ). In addition, defendant's radiologist found degenerative disc disease and no post-traumatic changes in plaintiff's cervical spine (see Macdelinne F. v. Jimenez, 126 A.D.3d 549, 551, 6 N.Y.S.3d 40 [1st Dept.2015] ). Plaintiff does not argue on appeal that a triable issue of fact exists as to a serious injury of his cervical spine.

Defendant failed to establish that plaintiff did not sustain a permanent consequential

12 N.Y.S.3d 90

or significant limitation of use of the lumbar spine resulting from the September 2010 motor vehicle accident, since his own orthopedist found a significant limitation in flexion during his July 2013 evaluation of plaintiff (s...