Dacosta v. Gibbs

• Decision Date: 12 May 2016
• Docket Number: 1128, 308916/09.
• Citation: 2016 N.Y. Slip Op. 03804,33 N.Y.S.3d 160,139 A.D.3d 487
• Parties: Adelina DACOSTA, Plaintiff–Appellant, v. Carlos GIBBS, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 487

33 N.Y.S.3d 160

2016 N.Y. Slip Op. 03804

Adelina DACOSTA, Plaintiff–Appellant,

v.Carlos GIBBS, et al., Defendants–Respondents.

1128, 308916/09.

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

May 12, 2016.

Law Offices of Eric H. Green and Associates, New York (Marc Gertler of counsel), for appellant.

Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for respondents.

TOM, J.P., SWEENY, ANDRIAS, MANZANET–DANIELS, WEBBER, JJ.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered February 17, 2015, which granted defendants' 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 limitation of use of the lumbar spine, cervical spine, and right hand, and otherwise affirmed, without costs.

Defendants established prima facie that plaintiff did not suffer either significant limitation or permanent consequential limitation of use of her lumbar and cervical spine, by submitting affirmations by an orthopedist who found full ranges of motion in all planes and a neurologist who found no injury, except right hand weakness and deficits not related to the accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ). However, the sworn reports of plaintiff's treating chiropractor and pain management physician, who found objective indications of injury to the cervical and lumbar spine, raise triable issues of fact as to the extent of plaintiff's injuries and causation (see Reyes v. Se Park, 127 A.D.3d 459, 8 N.Y.S.3d 22 [1st Dept.2015] ; Sanchez v. Draper, 123 A.D.3d 492, 998 N.Y.S.2d 185 [1st Dept.2014] ). In concluding that plaintiff's spinal injuries were causally related to the accident, plaintiff's physician adequately addressed plaintiff's previous treatment for scoliosis, in light of plaintiff's claim that she was asymptomatic before the accident and the absence of any medical records showing otherwise (see Jeffers v. Style Tr. Inc., 99 A.D.3d 576, 577, 952 N.Y.S.2d 541 [1st Dept.2012] ).

Further, plaintiff's pain management physician diagnosed her with intrinsic minus hand injury involving a clawhand deformity, and opined that the hand condition resulted from cervical spine trigger point injections administered to relieve spinal pain causally related to the...