Long v. Taida Orchids, Inc.
| Citation | 2014 N.Y. Slip Op. 03777,986 N.Y.S.2d 469,117 A.D.3d 624 |
| Parties | James LONG, Plaintiff–Appellant, v. TAIDA ORCHIDS, INC., et al., Defendants–Respondents. |
| Decision Date | 27 May 2014 |
| Court | New York Supreme Court Appellate Division |
117 A.D.3d 624
986 N.Y.S.2d 469
2014 N.Y. Slip Op. 03777
James LONG, Plaintiff–Appellant,
v.
TAIDA ORCHIDS, INC., et al., Defendants–Respondents.
Supreme Court, Appellate Division, First Department, New York.
May 27, 2014.
[986 N.Y.S.2d 470]
Levine & Gilbert, New York (Harvey A. Levine of counsel), for appellant.
Adams, Hanson, Rego, Carlin, Kaplan & Fishbein, Yonkers (Won J. Sohng of counsel), for respondents.
SWEENY, J.P., ACOSTA, RENWICK, ANDRIAS, FREEDMAN, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered September 24, 2013, which granted defendants' motion for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, the motion denied to the extent plaintiff alleges “permanent consequential” and “significant” limitations of use of his cervical spine, and otherwise affirmed, without costs.
Defendants met their initial burden of establishing that plaintiff did not sustain serious injuries as a result of the accident ( Perez v. Rodriguez, 25 A.D.3d 506, 507–508, 809 N.Y.S.2d 15 [1st Dept.2006] ). Defendants' expert's report reflected that plaintiff's range of motion testing was normal, and that he revealed no functional disability at the time of examination.
In opposition, plaintiff raised an issue of material fact with respect to injuries he claims were sustained to his cervical spine ( Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ). The affirmed report of an orthopedist who examined plaintiff on behalf of the no-fault carrier six months after the accident confirmed that plaintiff had cervical radiculopathy and limitations in range of motion, for which the doctor recommended further treatment, and the affirmed report of plaintiff's radiologist found that the MRI of plaintiff's cervical spine showed two herniations, as well as mild degenerative changes. Plaintiff also submitted the affirmed report of chiropractor Dr. Ilya Simakovsky, who found significant, continuing limitations in range of motion over two
years after the accident, and opined, after review of the MRI films, that plaintiff's cervical herniations were traumatic in origin and caused by the accident, although the degenerative changes were not ( see Pindo v. Lenis, 99 A.D.3d 586, 952 N.Y.S.2d 544 [1st Dept.2012];Silverman v. MTA Bus Co., 101 A.D.3d 515, 955 N.Y.S.2d 597 [1st Dept.2012] ). The...
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