Reyes v. Se Park

• Decision Date: 09 April 2015
• Citation: 2015 N.Y. Slip Op. 03045,127 A.D.3d 459,8 N.Y.S.3d 22
• Parties: Ramon REYES, et al., Plaintiffs–Appellants, v. SE PARK, et al., Defendants–Respondents, Jeff S. Vogel, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 459

8 N.Y.S.3d 22

2015 N.Y. Slip Op. 03045

Ramon REYES, et al., Plaintiffs–Appellants

v. SE PARK, et al., Defendants–RespondentsJeff S. Vogel, et al., Defendants.

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

April 9, 2015.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants.

Picciano & Scahill, P.C., Westbury (Andrea E. Ferrucci of counsel), for Se Park and Sang K. Park, respondents.

The Law Offices of Edward M. Eustace, White Plains (Rose M. Cotter of counsel), for Francisco Munoz–Hernandez and Arbee Management, Inc., respondents.

GONZALEZ, P.J., MAZZARELLI, SAXE, MANZANET–DANIELS, CLARK, JJ.

Opinion

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered December 19, 2013, which, to the extent appealed from as limited by the briefs, upon defendants' motions, granted defendants summary judgment dismissing plaintiff Ramon Reyes's claims for failure to demonstrate a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion of defendants Munoz–Hernandez and Arbee Management, Inc. (collectively the Munoz–Hernandez defendants) and the motion of the Park defendants to the extent the motions are based on the lack of a permanent or significant limitation of use of plaintiff's spine, and grant the motions of the Munoz–Hernandez defendants and of defendants Vogel and RWV Land & Livestock, Inc. (collectively the Vogel defendants) to the extent the motions are based on their lack of liability, and otherwise affirmed, without costs.

Plaintiff contends that he suffered serious injury to his cervical, thoracic and lumbar spine following a motor vehicle accident that occurred when he was a passenger in the Munoz–Hernandez defendants' vehicle, which was rear-ended by the Park defendants' car. He also alleges that he was unable to perform substantially all of his customary activities for at least 90 out of the 180 days following the accident.

The Munoz–Hernandez defendants and the Park defendants made a prima facie showing of the lack of a permanent or significant limitation to plaintiff's spine through the reports of their neurological and orthopedic experts who found normal range of motion and no evidence of orthopedic or neurological injury

caused by the accident (see Tuberman v. Hall, 61 A.D.3d 441, 876 N.Y.S.2d 394 [1st Dept.2009] ). Although one of their medical experts found some minor limitations in plaintiff's spinal range of motion, those findings did not undermine the expert's conclusion that plaintiff suffered only resolved sprains and that his injuries did not amount to a permanent or significant limitation of use of his spine (id. ).

In opposition, plaintiff raised an issue of fact through the affirmation of his treating physician who opined that plaintiff suffered permanent and significant injuries to his spine

that were caused by the accident. The physician's findings, upon examination shortly after the accident and recently, included significant limitations in range of motion, muscle spasms and positive straight leg raising tests. Those findings, together with reports of positive MRI findings and EMG/NCV studies, provided objective evidence of injury (see Toure v. Avis Rent A Car Sys.,

98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ; Pantojas v. Lajara Auto Corp., 117 A.D.3d 577, 578, 986 N.Y.S.2d 87 [1st Dept.2014] ; Brown v. Achy, 9 A.D.3d 30, 32, 776 N.Y.S.2d 56 [1st Dept.2004] ). Although the MRI reports were not annexed or affirmed, they could be considered in opposition to summary judgment, since the positive MRI findings were referred to and set forth by defendants' experts, were not disputed by defendants' experts, and were not the only objective evidence relied upon by plaintiff's doctor in support of his opinion (see Mulligan v. City of New York, 120 A.D.3d 1155, 1156, 993 N.Y.S.2d 24 [1st Dept.2014] ; Cruz v. Rivera, 94 A.D.3d 576, 576, 942 N.Y.S.2d 91 [1st Dept.2012] ).

The Munoz–Hernandez defendants and the Park defendants made a prima facie showing of the lack of a 90/180–day claim by relying on plaintiff's deposition testimony that he returned to work immediately after the accident, missed about two and one-half months from work after returning, and was not directed by his physicians to restrict his activities (see Silverman v. MTA Bus Co., 101 A.D.3d 515, 517, 955 N.Y.S.2d 597 [1st Dept.2012] ).

In opposition, plaintiff failed to raise a triable issue of fact. Even if plaintiff had missed 90 days of work, that would not be determinative of his 90/180–day claim (see Rosa–Diaz v. Maria Auto Corp., 79 A.D.3d 463, 464, 913 N.Y.S.2d 51 [1st Dept.2010] ), and his claimed limitations, such as his inability to clean his house or play dominoes, were not ...