Colon v. Bernabe

• Decision Date: 29 September 2009
• Docket Number: 1065.
• Citation: 886 N.Y.S.2d 376,2009 NY Slip Op 06720,65 A.D.3d 969
• Parties: MELANIE M. COLON, Appellant, v. BERNARDIN GUTIERR BERNABE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

65 A.D.3d 969

886 N.Y.S.2d 376

2009 NY Slip Op 06720

MELANIE M. COLON, Appellant, v. BERNARDIN GUTIERR BERNABE et al., Respondents.

1065.

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

Decided September 29, 2009.

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered November 3, 2008, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d), unanimously modified, on the law, to the extent of denying defendants' motion in part and reinstating plaintiff's claims that she sustained a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, and remanding the matter for a determination of that prong of defendants' motion for summary judgment dismissing the action as against defendant Salem Truck Leasing, Inc. (Salem) and on plaintiff's cross motion to amend the complaint to assert a negligent entrustment claim as against Salem, and otherwise affirmed, without costs.

Defendants established a prima facie entitlement to summary judgment by submitting the affirmed reports of an orthopedic surgeon and a neurologist who, after conducting independent examinations of plaintiff, concluded that plaintiff had full range of motion in her neck, back and upper and lower extremities, and suffered from no neurological disability. Defendants also submitted the affirmed report of a radiologist, who, upon reviewing plaintiff's MRI films and CT scan, concluded that the disc bulges and/or herniations revealed through those tests were consistent with degenerative disc disease and not caused by the automobile accident at issue. Defendants also submitted plaintiff's deposition testimony, where she stated that she returned to work within two or three days of the accident.

Contrary to the determination of the motion court, plaintiff's opposition raised triable issues of fact that she sustained a serious injury. The affidavit of plaintiff's treating chiropractor contains objective, quantitative evidence with respect to diminished range of motion in the cervical and lumbar spine based on testing performed both immediately after the accident and then again, approximately 20 months after the accident. The chiropractor's range of motion findings conflict with those of defendants' expert, who found no restriction in range of motion,...