Williams v. Tatham

• Decision Date: 09 February 2012
• Citation: 2012 N.Y. Slip Op. 00900,92 A.D.3d 472,938 N.Y.S.2d 75
• Parties: Sharon Gray WILLIAMS, Plaintiff–Appellant, v. Karl W. TATHAM, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00900

92 A.D.3d 472

938 N.Y.S.2d 75

Sharon Gray WILLIAMS, Plaintiff–Appellant,

v.Karl W. TATHAM, et al., Defendants–Respondents.

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

Feb. 9, 2012.

Mitchell Dranow, Sea Cliff, for appellant.

Richard T. Lau & Associates, Jericho (Keith E. Ford of counsel), for Karl W. Tatham, respondent.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for Ceesay Alagy, respondent.SAXE, J.P., SWEENY, MOSKOWITZ, MANZANET–DANIELS, ROMÁN, JJ.

Appeal from amended order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 19, 2010, which, to the extent appealed from as limited by the briefs, inter alia, granted defendants' motions for summary judgment dismissing the complaint, deemed an appeal from judgment, same court and Justice, entered November 22, 2010 (CPLR 5501[c] ), dismissing the complaint, and, as so considered, unanimously reversed, on the law, without costs, and the complaint reinstated. Appeal from the order, same court and Justice, entered May 5, 2011, unanimously dismissed, without costs, as taken from a nonappealable paper, and to the extent it denied renewal, dismissed, without costs, as academic.

Defendants established their prima facie entitlement to judgment as a matter of law, as to both the permanent and nonpermanent categories of serious injury, by submitting evidence, in the form of an affirmed report from a radiologist, demonstrating that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) since the MRI films revealed evidence of degeneration in plaintiff's back and right shoulder that preexisted the accident ( see Linton v. Nawaz, 62 A.D.3d 434, 438, 879 N.Y.S.2d 82 [2009], affd. 14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010]; Guadalupe v. Blondie Limo, Inc., 43 A.D.3d 669, 841 N.Y.S.2d 525 [2007]; Shuji Yagi v. Corbin, 44 A.D.3d 440, 843 N.Y.S.2d 276 [2007]; Thompson v. Abbasi, 15 A.D.3d 95, 96, 788 N.Y.S.2d 48 [2005] ).

In opposition, however, plaintiff submitted an affidavit from her treating chiropractor who medically examined her several times, employed objective range of motion testing, found restricted range of motion in plaintiff's lumbar and cervical spine, and thereafter concluded that “as a direct result of the accident [plaintiff] sustained permanent injury to her spine, muscular, and neurological systems.” Accordingly, with respect to the permanent categories of serious injury alleged, plaintiff, by submitting expert opinion “attributing the injuries to a different, yet altogether equally plausible, cause, that is, the accident” ( Linton at 439–440, 879 N.Y.S.2d 82; Yuen v. Arka Memory Cab Corp. 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [2011] ), raised an issue of fact with respect to whether she sustained a serious injury thereby precluding summary judgment in defendants' favor ( id.; Lavali v. Lavali, 89 A.D.3d 574, 575, 933 N.Y.S.2d 21 [2011] [expert opinion that plaintiff's injuries were degenerative in nature and thus unrelated to her accident sufficiently rebutted by opinion of plaintiff's expert, who upon a physical examination of the plaintiff opined that plaintiff's injuries were caused by the accident] ).

Plaintiff also established that she sustained a medically determined injury, which prevented her from performing her usual and customary daily activities for not less than 90 days during the 180 days immediately following this accident. She thus raised an issue of fact precluding...