Pisani v. Car

• Decision Date: 24 March 2011
• Citation: 2011 N.Y. Slip Op. 02119,82 A.D.3d 596,920 N.Y.S.2d 32
• Parties: Lorraine PISANI, Plaintiff–Appellant,v.FIRST CLASS CAR AND LIMOUSINE SERVICE CORP., Defendants,Ruben Bello, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 596

920 N.Y.S.2d 32

2011 N.Y. Slip Op. 02119

Lorraine PISANI, Plaintiff–Appellant,

v.FIRST CLASS CAR AND LIMOUSINE SERVICE CORP., Defendants,Ruben Bello, Defendant–Respondent.

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

March 24, 2011.

Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola (Aybike Donuk of counsel), for appellant.Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondent.GONZALEZ, P.J., CATTERSON, RICHTER, ABDUS–SALAAM, ROMÁN, JJ.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered April 7, 2010, which granted defendant Ruben Bello's motion for summary judgment dismissing the complaint as against him for lack of serious injury, unanimously modified, on the law, to the extent of denying that part of defendant's motion to dismiss plaintiff's claims for permanent consequential and/or significant limitation of use, and otherwise affirmed, without costs.

Defendant met his initial burden of proof of establishing that plaintiff's injuries were not, as a matter of law, serious within the meaning of Insurance Law § 5102(d). Defendant submitted the report of an orthopedic surgeon who determined that plaintiff had a normal range of motion in the cervical and lumbar spine. Defendant also demonstrated that plaintiff's injuries were not causally related to the accident through the report of a radiologist, who opined that the minimal disc bulges and hypertrophic changes of the facet joints were degenerative and preexisted the accident ( see Jacobs v. Rolon, 76 A.D.3d 905, 905, 908 N.Y.S.2d 31 [2010] ). In addition, defendant demonstrated that plaintiff did not sustain a 90/180–day injury by submitting her deposition testimony wherein she admitted that she missed only three days of work following the accident ( see Ortiz v. Ash Leasing, Inc., 63 A.D.3d 556, 557, 883 N.Y.S.2d 180 [2009] ).

Plaintiff, however, raised issues of fact as to whether she sustained a serious injury under the categories of permanent consequential limitation of use of a body organ or member and/or significant limitation of use of a body function or system ( see Insurance Law § 5102[d] ). Plaintiff's treating chiropractor and her treating orthopedist determined, based on objective, quantitative tests, that plaintiff had significant limitations in range of motion in both her cervical and lumbar spine. The chiropractor examined plaintiff on the day after the accident....