Eteng v. Dajos Transp.

• Citation: 932 N.Y.S.2d 58,2011 N.Y. Slip Op. 07932,89 A.D.3d 506
• Parties: Serena ETENG, et al., Plaintiffs–Appellants,v.DAJOS TRANSPORTATION, et al., Defendants–Respondents.
• Decision Date: 10 November 2011
• Court: New York Supreme Court Appellate Division

89 A.D.3d 506
932 N.Y.S.2d 58
2011 N.Y. Slip Op. 07932

Serena ETENG, et al., Plaintiffs–Appellants,
v.
DAJOS TRANSPORTATION, et al., Defendants–Respondents.

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

Nov. 10, 2011.

[932 N.Y.S.2d 58]

Law Offices of Stuart M. Kerner, P.C., Bronx (Stuart M. Kerner of counsel), for Serena Eteng, appellant.O'Connor, Redd, LLP, White Plains (John P. Gray of counsel), for Andre Allen, appellant.

[932 N.Y.S.2d 59]

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.SAXE, J.P., SWEENY, DeGRASSE, MANZANET–DANIELS, ROMÁN, JJ.

[89 A.D.3d 507] Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 26, 2010, which, to the extent appealed as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, the motion denied as to plaintiff Serena Eteng's claims of significant limitation of use of her cervical and lumbar spine and plaintiff Andre Allen's claims of significant limitation of use of his lumbar spine and right knee, and otherwise affirmed, without costs.

Defendants made a prima facie showing of entitlement to summary judgment as to plaintiff Eteng's claims of “significant limitation of use” of her cervical and lumbar spine, right shoulder and right knee (Insurance Law § 5102[d] ). They submitted expert medical reports finding normal ranges of motion, as well as the report of a radiologist who opined that changes shown in an MRI of the then 25–year–old plaintiff's cervical spine were degenerative. In opposition, plaintiff submitted competent medical evidence raising an issue of fact as to her cervical and lumbar spine injuries, including the report of a radiologist who found disc herniations, and of her treating physician who opined after full examination within a week of the accident that her injuries were causally related to the accident (see Linton v. Nawaz, 62 A.D.3d 434, 439, 879 N.Y.S.2d 82 [2009], affd. on other grounds 14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010]; see also June v. Akhtar, 62 A.D.3d 427, 878 N.Y.S.2d 59 [2009] ).

Defendants also met their initial burden as to plaintiff Allen's claims of “significant limitation of use” of his shoulders, right knee and cervical spine. They submitted expert medical reports finding normal ranges of motion, as well...