Anderson v. Pena

• Decision Date: 18 November 2014
• Citation: 997 N.Y.S.2d 40,122 A.D.3d 484,2014 N.Y. Slip Op. 07948
• Court: New York Supreme Court — Appellate Division
• Parties: Petra ANDERSON, Plaintiff–Appellant, v. Anilfa PENA, et al., Defendants–Respondents.

122 A.D.3d 484

997 N.Y.S.2d 40

2014 N.Y. Slip Op. 07948

Petra ANDERSON, Plaintiff–Appellant,

v.Anilfa PENA, et al., Defendants–Respondents.

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

Nov. 18, 2014

Affirmed as modified. Decolator, Cohen & DiPrisco, LLP, Garden City (Joseph L. Decolator of counsel), for appellant.

Russo, Apoznanski & Tambasco, Melville (Susan J. Mitola of counsel), for respondents.

TOM, J.P., RENWICK, ANDRIAS, DeGRASSE, KAPNICK, JJ.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered April 29, 2013, which granted defendants' motion for summary judgment dismissing the complaint on the threshold issue of serious injury pursuant to Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to plaintiff's claims of “significant” and “permanent consequential” limitations in use of her cervical spine, and otherwise affirmed, without costs.

Defendants established prima facie that plaintiff did not sustain a serious injury to her cervical spine by submitting their orthopedic expert's report finding, upon examination, a full range of motion in plaintiff's spine ( see Levinson v. Mollah, 105 A.D.3d 644, 963 N.Y.S.2d 653 [1st Dept.2013] ). The orthopedist was not required to review plaintiff's MRI films or reports ( see Abreu v. NYLL Mgt. Ltd., 107 A.D.3d 512, 968 N.Y.S.2d 25 [1st Dept.2013] ).

In opposition, plaintiff raised triable issues of fact through her expert's report, which included an affirmation stating that plaintiff sustained objective medical injuries and deficits of range of motion and opining that the injuries were causally related to the subject motor vehicle accident ( see Young Kyu Kim v. Gomez, 105 A.D.3d 415, 962 N.Y.S.2d 127 [1st Dept.2013]; Barhak v. Almanzar–Cespedes, 101 A.D.3d 564, 565, 957 N.Y.S.2d 40 [1st Dept.2012] ).

Defendants argue that plaintiff failed to present any explanation for the two-year gap in her treatment, which amounted to a cessation of treatment. However, as they first raised this issue in their reply affirmation in support of the motion, it is not properly before us ( see Mulligan v. City of New York, 120 A.D.3d 1155, 993 N.Y.S.2d 24 [1st Dept.2014] ).

Plaintiff failed to raise an issue of fact in opposition to defendants' prima facie showing that she did not sustain a 90/180–day injury. Defendants relied on plaintiff's affidavit stating that she missed about two months of work and her expert physician's affirmed report...