Moreira v. Mahabir

• Decision Date: 15 February 2018
• Docket Number: Index 301455/12,5720
• Citation: 158 A.D.3d 518,71 N.Y.S.3d 38
• Parties: Rufina MOREIRA, Plaintiff–Appellant, v. Prakash MAHABIR, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 518

71 N.Y.S.3d 38

Rufina MOREIRA, Plaintiff–Appellant,

v.Prakash MAHABIR, et al., Defendants–Respondents.

5720

Index 301455/12

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

ENTERED: FEBRUARY 15, 2018

Sacco & Fillas, LLP, Astoria (Chad B. Russell of counsel), for appellant.

Lawrence Heisler, Brooklyn (Harriet Wong of counsel), for Prakash Mahabir and New York City Transit Authority, respondents.

Saretsky Katz & Dranoff, L.L.P., New York (Daniel Rifkin of counsel), for Mohammad Hossain and Relax Auto Services, Inc., respondents.

Sweeny, J.P., Manzanet–Daniels, Gische, Kahn, Oing, JJ.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 21, 2016, which granted defendants' motions for summary judgment dismissing the complaint on the threshold issue of serious injury pursuant to Insurance Law § 5102(d), unanimously modified, on the law, to deny the motions as to plaintiff's claims regarding her cervical spine and lumbar spine under the permanent consequential limitation and significant limitation categories, and otherwise affirmed, without costs.

Plaintiff alleges that she sustained serious injuries to her cervical and lumbar spine following a motor vehicle accident that occurred in July 2011 when she was a passenger on a City bus. Defendants made a prima facie showing that plaintiff did not sustain serious injuries involving significant or permanent consequential limitation in use of those body parts through the affirmed reports of an orthopedic surgeon and neurologist who found normal ranges of motion, negative objective test results, and resolved sprains and strains (see Rickert v. Diaz , 112 A.D.3d 451, 451–452, 976 N.Y.S.2d 80 [1st Dept. 2013] ). Defendant's neurologist explained that the limitations he measured in the lumbar spine were due to plaintiff's limited effort on examination, not any injury related to the accident (see Mercado–Arif v. Garcia , 74 A.D.3d 446, 902 N.Y.S.2d 72 [1st Dept. 2010] ). However, defendants' experts did not raise any issue as to causation, since the orthopedic surgeon acknowledged that the accident caused cervical and lumbar sprain that had resolved. While their neurologist stated that the MRIs "appeared to show pre-existing herniations," he did not review the MRI films himself, and his equivocal statement was inconsistent with the referenced MRI reports, which identified specific herniations and noted no significant degenerative disc disease in the spine.

In opposition, plaintiff raised an issue of fact through the affirmed reports of a physician who examined her soon after the accident, and another who examined her recently and observed significant limitations in range of motion of the affected body parts, as well as positive results on objective tests for cervical and lumbar injury (see Encarnacion v. Castillo , 146 A.D.3d 600, 601, 44 N.Y.S.3d 744 [1st Dept. 2017] ; DaCosta v. Gibbs , 139 A.D.3d 487, 487, 33 N.Y.S.3d 160 [1st Dept. 2016] ). Although the contents of some of the medical records submitted by plaintiff were inadmissible because they were unaffirmed (see Barry v. Arias , 94 A.D.3d 499, 499, 942 N.Y.S.2d 57 [1st Dept. 2012] ), they could "be considered for the purpose of demonstrating that plaintiff sought medical treatment for h[er] claimed injuries contemporaneously" ( Vishevnik v. Bouna , 147 A.D.3d 657, 659, 48 N.Y.S.3d 93 [1st Dept. 2017] ).

To the extent that defendants...