Kone v. Rodriguez

• Decision Date: 18 June 2013
• Citation: 967 N.Y.S.2d 359,2013 N.Y. Slip Op. 04560,107 A.D.3d 537
• Parties: Abdoulaye KONE, Plaintiff–Respondent, Issif Konate, Plaintiff, v. Jean RODRIGUEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 537
967 N.Y.S.2d 359
2013 N.Y. Slip Op. 04560

Abdoulaye KONE, Plaintiff–Respondent,
Issif Konate, Plaintiff,
v.
Jean RODRIGUEZ, Defendant–Appellant.

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

June 18, 2013.

[967 N.Y.S.2d 360]

Richard T. Lau & Associates, Jericho (Keith E. Ford of counsel), for appellant.

Michael S. Grossman, New York, for respondent.

TOM, J.P., ACOSTA, SAXE, FREEDMAN, JJ.

[107 A.D.3d 537]Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered March 27, 2012, which denied defendant's motion for summary judgment dismissing the complaint alleging serious injuries to plaintiff Abdoulaye Kone's cervical spine, lumbar spine, and left shoulder under the “permanent consequential limitation of use” and “significant limitation of use” categories of Insurance Law § 5102(d), unanimously modified, on the law, the motion granted to the extent of dismissing the claim alleging[107 A.D.3d 538]“permanent consequential limitation,” and otherwise affirmed, without costs.

Defendant established prima facie absence of a serious injury by submitting the affirmed report of his orthopedist, who examined plaintiff 2 1/2 years after the accident and found full range of motion, negative test results, and resolved sprains in the cervical spine, lumbar spine, and left shoulder ( see Melo v. Grullon, 101 A.D.3d 452, 955 N.Y.S.2d 581 [1st Dept. 2012];Bailey v. Islam, 99 A.D.3d 633, 953 N.Y.S.2d 39 [1st Dept. 2012] ). He also established lack of causation as to the lumbar spine and left shoulder by submitting the affirmed MRI reports of his radiologist, who reviewed the MRI films and concluded that the disc bulging and disc herniation in the lumbar spine, and subacromial bone spur in the left shoulder, were degenerative in nature, and found no evidence of acute trauma-related injury in either part of the body ( see Pannell–Thomas v. Bath, 99 A.D.3d 485, 485–486, 952 N.Y.S.2d 499 [1st Dept. 2012] ).

Plaintiff failed to raise a triable issue of fact as to existence of a “permanent consequential limitation,” as his orthopedist's findings of limitations and positive clinical test results in the cervical spine, lumbar spine, and left shoulder were not based on a recent examination, but on an examination that was performed over 14 months before the examination by defendant's orthopedist ( Vega v. MTA Bus Co., 96 A.D.3d 506, 507, 946 N.Y.S.2d 162 [1st Dept. 2012] ). Nevertheless, plaintiff raised a triable issue of fact as to...