Birch v. 31 N. Blvd., Inc.

• Decision Date: 24 May 2016
• Docket Number: 1235A, 1235.
• Citation: 139 A.D.3d 580,32 N.Y.S.3d 142,2016 N.Y. Slip Op. 03999
• Parties: Christopher BIRCH, Plaintiff–Appellant, v. 31 NORTHERN BLVD., INC., Defendant–Respondent, Adokpe Komi, Defendant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 580

32 N.Y.S.3d 142

2016 N.Y. Slip Op. 03999

Christopher BIRCH, Plaintiff–Appellant,

v. 31 NORTHERN BLVD., INC., Defendant–Respondent,Adokpe Komi, Defendant.

1235A, 1235.

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

May 24, 2016.

Law Offices of Peter P. Traub, New York (Peter P. Traub Jr. of counsel), for appellant.

Law Offices of Marjorie E. Bornes, Brooklyn (Marjorie E. Bornes of counsel), for respondent.

SWEENY, J.P., RENWICK, MOSKOWITZ, KAPNICK, GESMER, JJ.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered September 10, 2015, which granted defendant 31 Northern Blvd., Inc.'s motion for summary judgment dismissing the complaint on the threshold issue of serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to the claims of “permanent consequential” and “significant” limitations in use of the cervical and lumbar spine, and otherwise affirmed, without costs. Order, same court and Justice, entered August 4, 2015, which denied plaintiff's motion for summary judgment on the issue of liability, unanimously reversed, on the law, and the motion granted, without costs.

Defendant made a prima facie showing that plaintiff did not sustain a serious injury to his cervical or lumbar spine or other body parts by submitting expert reports by an orthopedist and neurologist, who found full range of motion in those parts and opined that the alleged injuries had resolved. In addition, defendant submitted an affirmed report by a radiologist, who found preexisting degenerative conditions in plaintiff's cervical and lumbar spine (see Lee v. Lippman, 136 A.D.3d 411, 24 N.Y.S.3d 277 [1st Dept.2016] ; Matos v. Urena, 128 A.D.3d 435, 10 N.Y.S.3d 6 [1st Dept.2015] ).

In opposition, plaintiff raised a triable issue of fact as to serious injury to his cervical and lumbar spine. His treating physician, who reviewed the MRI films, testified that they showed disc herniations and bulges at multiple levels in the cervical and lumbar spine, with no evidence of desiccation or other degenerative condition. The physician also reviewed results of electrodiagnostic testing showing radiculopathy and neuropathy, and detected spasms at several examinations. He opined that, given plaintiff's lack of symptoms before the accident and the history of the accident, the conditions were caused by the accident, thus presenting an opinion different from that of defendant's experts but equally...