Frias v. Gonzalez-Vargas

• Decision Date: 14 February 2017
• Citation: 147 A.D.3d 500,47 N.Y.S.3d 30
• Parties: Juana FRIAS, Plaintiff–Appellant, v. Victor Cesar GONZALEZ–VARGAS, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 500

47 N.Y.S.3d 30

Juana FRIAS, Plaintiff–Appellant,

v.Victor Cesar GONZALEZ–VARGAS, et al., Defendants–Respondents.

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

Feb. 14, 2017.

David S. Kritzer & Associates, P.C., Smithtown (David S. Kritzer of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for Victor Cesar Gonzalez–Vargas, respondent.

Maroney O'Connor LLP, New York (Ross T. Herman of counsel), for Juan R. Hernandez, respondent.

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

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered September 14, 2015, which granted defendants' separate motions 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 motions to the extent they sought dismissal of plaintiff's claims that she suffered serious injuries involving two ribs, her cervical spine and her lumbar spine, and otherwise affirmed, without costs. Order, same court and Justice, entered March 2, 2016, which, to the extent appealed from, denied plaintiff's motion to renew, unanimously affirmed, without costs.

Defendants satisfied their prima facie burden of demonstrating that plaintiff did not sustain a serious injury to her right shoulder, cervical spine or lumbar spine by submitting the reports of their orthopedists and neurologists, who found full range of motion and opined that plaintiff's injuries had resolved (see Birch v. 31 N. Blvd., Inc., 139 A.D.3d 580, 580–581, 32 N.Y.S.3d 142 [1st Dept.2016] ). They also submitted an MRI report prepared by plaintiff's radiologist, who found no evidence of a rotator cuff tear in the right shoulder, a report of a portable chest X–ray taken in the emergency room, finding no rib fracture, and the report of an expert in emergency medicine, who opined that plaintiff's emergency room records were inconsistent with her claimed serious injuries.

In opposition, plaintiff raised an issue of fact concerning her claimed rib fractures by submitting the affirmed report of her radiologist, who took a second X ray a month after the accident, this one including multiple views, which revealed two fractured ribs on the right side. Although the initial X ray had not revealed those fractures, the emergency room records show that plaintiff complained of right-side rib pain days after the accident, and plaintiff's treating doctor diagnosed rib fracture or contusions caused by the accident. The record thus presents a factual issue as to whether the fractures were causally related to the accident (see Uribe v. Jimenez, 133 A.D.3d 844, 20 N.Y.S.3d 555 [2d Dept.2015] ).

Plaintiff also raised an issue of fact as to her claim of significant and permanent consequential limitations of use of her cervical and lumbar spine. She submitted hospital records reflecting that she did make...