Jean-Louis v. Gueye

• Decision Date: 10 April 2012
• Citation: 2012 N.Y. Slip Op. 02612,942 N.Y.S.2d 52,94 A.D.3d 504
• Parties: Danielle JEAN–LOUIS, Plaintiff–Respondent, v. Modou GUEYE, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02612

94 A.D.3d 504

942 N.Y.S.2d 52

Danielle JEAN–LOUIS, Plaintiff–Respondent,

v.Modou GUEYE, et al., Defendants–Appellants.

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

April 10, 2012.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellants.

Law Office of A. Ali Yusaf & Associates, Richmond Hill (Stephen A. Skor of counsel), for respondent.

ANDRIAS, J.P., FRIEDMAN, ACOSTA, FREEDMAN, RICHTER, JJ.

Order, Supreme Court, New York County (George J. Silver, J.), entered April 14, 2011, which, in an action for personal injuries, denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), and granted plaintiff's cross motion for partial summary judgment as to her 90/180–day claim, unanimously modified, on the law, to deny plaintiff's cross motion, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered October 12, 2011, which, insofar as it granted reargument, adhered to the prior order, unanimously dismissed, without costs, as academic.

Defendants met their prima facie burden with respect to the permanent consequential and significant limitation categories by offering the affirmation of an orthopedic surgeon who found normal ranges of motion for plaintiff's cervical spine, lumbar spine, left and right hips, and left and right knees ( see Insurance Law § 5102[d]; Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ). Plaintiff raised an issue of fact in opposition by submitting the MRI reports of her lumbar spine showing bulges at L4–5 and L5–S1, of her cervical spine showing disc bulges at C5–C6, and a grade II tear of the MCL of plaintiff's right knee, along with the affirmation of her orthopedic surgeon stating that such injuries were caused by the accident or had been exacerbated thereby, and that each of those body parts suffered losses in their range of motion as a result of the accident.

We reject defendants' argument that the affirmation of plaintiff's orthopedic surgeon is rendered speculative because of his failure to reconcile the notation made on plaintiff's emergency room records indicating a full range of motion of her cervical spine. Those records are unaffirmed, fail to indicate any objective instruments or criteria used to make such a finding, and fail to compare normal values ( see Pommells v. Perez, 4 N.Y.3d 566, 573–574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005]; Rosa–Diaz v. Maria Auto Corp., 79 A.D.3d 463, 464, 913 N.Y.S.2d 51 [2010]; DeJesus v. Paulino, 61 A.D.3d 605, 878 N.Y.S.2d 29 [2009] ). Further, contrary to defendants' arguments, plaintiff's orthopedic surgeon set forth an adequate basis for relating the accident as the cause of plaintiff's injuries or the exacerbation thereof ( see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ). We also reject defendants' arguments pertaining to plaintiff's alleged gap in treatment because it is adequately explained by her orthopedic surgeon's finding that her improvement plateaued ( see Pommells v. Perez, 4 N.Y.3d at 574, 797 N.Y.S.2d 380, 830 N.E.2d 278; Mercado–Arif v....