Hayes v. Gaceur

• Court: New York Supreme Court — Appellate Division
• Citation: Hayes v. Gaceur, 162 A.D.3d 437, 79 N.Y.S.3d 119 (N.Y. App. Div. 2018)
• Decision Date: 07 June 2018
• Docket Number: 6791,Index 22728/15E,6790
• Parties: Shantel HAYES, Plaintiff–Appellant, v. Noureddine GACEUR, et al., Defendants–Respondents.

162 A.D.3d 437

79 N.Y.S.3d 119

Shantel HAYES, Plaintiff–Appellant,

v.Noureddine GACEUR, et al., Defendants–Respondents.

6790

6791

Index 22728/15E

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

ENTERED: JUNE 7, 2018

McMahon & McCarthy, Bronx (Daniel C. Murphy of counsel), for appellant.

Marjorie E. Bornes, Brooklyn, for respondents.

Manzanet–Daniels, J.P., Tom, Andrias, Kapnick, Singh, JJ.

Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered July 5, 2017, which granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to satisfy the serious injury threshold of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion to the extent it sought dismissal of plaintiff's claims that she suffered serious injuries to her cervical spine, both shoulders, and left knee, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered October 26, 2017, which, upon reargument, adhered to the prior order, unanimously dismissed, without costs, as academic.

Plaintiff alleges that she suffered serious injuries to her cervical, thoracic and lumbar spine, both shoulders and left knee, as a result of an accident that occurred when defendants' vehicle hit the side of her vehicle.

Defendants satisfied their prima facie burden of demonstrating that plaintiff did not sustain any serious injury by submitting the reports of a neurologist and orthopedist, who found full range of motion in all parts and opined that plaintiff's injuries had resolved (see Latus v. Ishtarq, 159 A.D.3d 433, 433, 71 N.Y.S.3d 67 [1st Dept. 2018] ; Moreira v. Mahabir, 158 A.D.3d 518, 518, 71 N.Y.S.3d 38 [1st Dept. 2018] ). Defendants also submitted a radiologist's report opining that the MRI of plaintiff's cervical spine was normal and showed no traumatic injury, and the emergency medicine expert, who opined that plaintiff's hospital records were inconsistent with her claimed serious injuries (see Frias v. Gonzalez–Vargas, 147 A.D.3d 500, 501, 47 N.Y.S.3d 30 [1st Dept. 2017].

In opposition, however, plaintiff raised an issue of fact as to her claimed cervical spine, shoulder and left knee injuries through the report of her treating orthopedic surgeon. The physician examined plaintiff the day after the accident and on several occasions thereafter. He found limitations in range of motion of her cervical spine the day after the accident and on recent examination; he examined plaintiff's shoulders and left knee within a month after the accident and found limitations in range of motion at the initial examination and recently (see Perl v. Meher, 18 N.Y.3d 208, 218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ["Injuries can become significantly more or less severe as time passes"]; Windham v. New York City Tr. Auth., 115 A.D.3d 597, 598, 983 N.Y.S.2d 4 [1st Dept. 2014] ). In addition, he personally reviewed the MRI examinations of plaintiff's cervical spine, shoulders and left knee, and opined that they revealed objective evidence of injuries caused by the accident, rather than by degeneration (see Venegas v. Signh, 103 A.D.3d 562, 563, 962 N.Y.S.2d 67 [1st Dept. 2013] ; Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [1st Dept. 2011] ).

Defendants' argument that plaintiff had a "gap" in treatment was not raised by defendants in their motion papers, when plaintiff would have had an opportunity to respond by submitting proof in support of her testimony that she received extensive treatment. Defendants' experts did not review any medical records, but plaintiff's physician affirmed that he reviewed medical records that demonstrated that plaintiff received continuing treatment after the accident. Accordingly, defendants' argument was waived and is unsupported by the record (see Paulling v. City Car & Limousine Servs., Inc., 155 A.D.3d 481, 481, 65 N.Y.S.3d 19 [1st Dept. 2017] ; Tadesse v....