Hayes v. Gaceur

• Decision Date: 07 June 2018
• Docket Number: 6791,Index 22728/15E,6790
• Parties: Shantel HAYES, Plaintiff–Appellant, v. Noureddine GACEUR, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

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

79 N.Y.S.3d 120

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

79 N.Y.S.3d 121

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...