Fludd v. Pena

• Decision Date: 13 November 2014
• Citation: 2014 N.Y. Slip Op. 07747,122 A.D.3d 436,997 N.Y.S.2d 14
• Parties: Shakina FLUDD, Plaintiff–Appellant, v. Anilfa PENA, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 436

997 N.Y.S.2d 14

2014 N.Y. Slip Op. 07747

Shakina FLUDD, Plaintiff–Appellant,

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

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

Nov. 13, 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.

GONZALEZ, P.J., TOM, RENWICK, GISCHE, JJ.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered April 24, 2013, which granted defendants' motion for summary judgment dismissing the complaint on the threshold issue of serious injury under 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 lumbar spine, and otherwise affirmed, without costs.

Defendants established prima facie that plaintiff did not sustain serious injuries to her cervical or lumbar spine as a result of the subject motor vehicle accident by submitting the affirmed report of their medical expert, who found that plaintiff had full normal range of motion and exhibited no functional disability at the time of examination ( see Long v. Taida Orchids, Inc., 117 A.D.3d 624, 986 N.Y.S.2d 469 [1st Dept.2014] ). Defendants were not required to present medical evidence with respect to plaintiff's alleged injury to her left shoulder, since plaintiff failed to recall at her deposition which shoulder was injured ( see Thomas v. City of New York, 99 A.D.3d 580, 582, 953 N.Y.S.2d 15 [1st Dept.2012], lv. denied 22 N.Y.3d 857, 2013 WL 6500630 [2013] ). Moreover, plaintiff made no complaints about any shoulder injury when she was examined by defendants' expert.

In opposition, plaintiff raised a material issue of fact as to injuries she claims were sustained to her lumbar spine. Her treating orthopedist confirmed that she exhibited limitations in range of motion in her lumbar spine when she was examined shortly after the accident and again when she was examined after defendants moved for summary judgment. The orthopedist also affirmed that he reviewed the MRI taken of plaintiff's lumbar spine less than two months after the accident, and it showed bulging disks, and he opined that the injuries were causally related to the accident ( see Santos v. Perez, 107 A.D.3d 572, 968 N.Y.S.2d 43 [1st Dept.2013] ). Although plaintiff inadvertently failed to attach the MRI report to the radiologist's affirmation she submitted, the affirmation by the orthopedist who reviewed the MRI constitutes admissible...