Tejada v. LKQ Hunts Point Parts, 7586

• Decision Date: 13 November 2018
• Docket Number: Index 302795/14,7586
• Citation: 88 N.Y.S.3d 156,166 A.D.3d 436
• Parties: Nestor D. TEJADA, Plaintiff–Respondent, v. LKQ HUNTS POINT PARTS, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 436

88 N.Y.S.3d 156

Nestor D. TEJADA, Plaintiff–Respondent,

v.LKQ HUNTS POINT PARTS, et al., Defendants–Appellants.

7586

Index 302795/14

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

ENTERED: NOVEMBER 13, 2018

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants.

Mitchell Dranow, Sea Cliff, for respondent.

Sweeny, J.P., Manzanet–Daniels, Gische, Gesmer, Singh, JJ.

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about September 26, 2017, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing plaintiff's claims that he suffered a serious injury involving "significant" and "permanent consequential" limitation of use of his lumbar spine and a 90/180–day injury under Insurance Law § 5102(d), unanimously modified, on the law, to grant the motion with respect to plaintiff's claim of "permanent consequential" limitation of use of his lumbar spine and his 90/180–day claim, and otherwise affirmed, without costs.

Defendants met their prima facie burden of demonstrating lack of serious injury to plaintiff's lumbar spine by submitting the expert reports of a neurologist and orthopedist who found near normal range of motion and opined that plaintiff's subjective complaints were not substantiated by clinical objective findings (see Moore–Brown v. Sofi Hacking Corp., 151 A.D.3d 567, 57 N.Y.S.3d 38 [1st Dept. 2017] ; Reyes v. Se Park, 127 A.D.3d 459, 460, 8 N.Y.S.3d 22 [1st Dept. 2015] ). Defendants further showed that plaintiff's lumbar spine condition was not causally related to the March 2013 motor vehicle accident through the report of their radiologist, who opined that plaintiff's MRI showed multilevel degenerative disc disease

(see

Rabb v. Mohammed, 132 A.D.3d 527, 18 N.Y.S.3d 35 [1st Dept. 2015] ; Young Kyu Kim v. Gomez, 105 A.D.3d 415, 962 N.Y.S.2d 127 [1st Dept. 2013] ).

In opposition, plaintiff raised a triable issue of fact as to the existence of an injury involving a "significant" limitation of use of his lumbar spine, but not as to a "permanent consequential" limitation of use injury (see Kang v. Almanzar, 116 A.D.3d 540, 984 N.Y.S.2d 42 [1st Dept. 2014] ; Kone v. Rodriguez, 107 A.D.3d 537, 967 N.Y.S.2d 359 [1st Dept. 2013] ). Plaintiff's orthopedic surgeon, who performed a discectomy

procedure in May 2014, sufficiently addressed the findings of degeneration by opining that the MRI films did not show degeneration and that plaintiff's acute onset lumbar condition was causally related to the accident (see

Rabb v. Mohammed, 132 A.D.3d at 528, 18 N.Y.S.3d 35 ; Young Kyu Kim v. Gomez, 105 AD3d at 415, 962 N.Y.S.2d 127 ). Plaintiff also demonstrated the existence of significant limitations in his lumbar spine range of motion, both shortly after the accident and nine months later, through the reports of his orthopedic surgeon and his post-accident treatment records (see

Castillo v. Abreu, 132 A.D.3d 520, 521, 18 N.Y.S.3d 378 [1st Dept. 2015] ). Since the medical records were submitted by defendants and were properly before the court, plaintiff was entitled to rely on them (see

Wenegieme v. Harriott, 157 A.D.3d 412, 68 N.Y.S.3d 432 [1st Dept. 2018] ).

However, plaintiff failed to provide a reasonable explanation for his complete cessation of treatment...