Melo v. Grullon

• Decision Date: 06 December 2012
• Citation: 955 N.Y.S.2d 581,101 A.D.3d 452,2012 N.Y. Slip Op. 08432
• Parties: Pedro MELO, Plaintiff–Appellant, v. Jose GRULLON, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 452

955 N.Y.S.2d 581

2012 N.Y. Slip Op. 08432

Pedro MELO, Plaintiff–Appellant,

v.Jose GRULLON, Defendant–Respondent.

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

Dec. 6, 2012.

Frekhtman & Associates, Brooklyn (Andrew Green of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for respondent.

TOM, J.P., MAZZARELLI, MOSKOWITZ, ABDUS–SALAAM, FEINMAN, JJ.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered August 3, 2011, which granted defendants' motion for summary judgment dismissing the complaint on the threshold issue of serious injury under Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to the claims of serious injury resulting in “permanent consequential” or “ significant” limitations and fracture, and otherwise affirmed, without costs.

Defendant established prima facie that plaintiff did not sustain a serious injury resulting in either a “permanent consequential” or a “significant” limitation of use of his lumbar spine by submitting an affirmation by a neurologist who examined plaintiff and found a full range of motion of the lumbar spine, and diagnosed him with a resolved lumbar sprain/strain ( see Baez v. Boyd, 90 A.D.3d 524, 934 N.Y.S.2d 313 [1st Dept.2011] ).

In opposition, plaintiff raised an issue of fact by submitting an MRI report by his radiologist, who found a disc herniation at L4–5; a report by a physician who opined that a subsequent MRI of the lumbar spine revealed an acute compression fracture of the endplate at L–3 and disc herniations at L4–5 and other levels; his chiropractor's affidavit showing range of motion limitations contemporaneous with the accident; and affirmations by three physicians who found continuing limitations and opined that these limitations were permanent and that the lumbar injuries were directly caused by the accident ( see Thompkins v. Ortiz, 95 A.D.3d 418, 943 N.Y.S.2d 474 [1st Dept.2012] ). This record does not support plaintiff's contention that he suffered a permanent loss of use of his lumbar spine ( see Oberly v. Bangs Ambulance, 96 N.Y.2d 295, 299, 727 N.Y.S.2d 378, 751 N.E.2d 457 [2001] ).

Defendant established prima facie that plaintiff did not sustain a 90/180–day injury by submitting plaintiff's bill of particulars and deposition testimony acknowledging that he was confined to bed and home for only a week; in opposition, plaintiff failed to raise an...