Windham v.

• Citation: 115 A.D.3d 597,983 N.Y.S.2d 4,2014 N.Y. Slip Op. 01991
• Parties: Robin WINDHAM, et al., Plaintiffs–Appellants, v. The NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Respondents.
• Decision Date: 25 March 2014
• Court: New York Supreme Court Appellate Division

115 A.D.3d 597
983 N.Y.S.2d 4
2014 N.Y. Slip Op. 01991

Robin WINDHAM, et al., Plaintiffs–Appellants,
v.
The NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Respondents.

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

March 25, 2014.

[983 N.Y.S.2d 6]

Gregory Peck and Associates, P.C., New York (Philip J. Hoffman of counsel), for Robin Windham, appellant.

Rehan Nazrali, Jackson Heights, for Kimberly Windham, Cheryl Harper and Chandler Windham, appellants.

Jeffrey Samel & Partners, New York (Jessica Wisniewski of counsel), for The New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority and Juan J. Fuentes, respondents.

Picciano & Scahill, P.C., Westbury (Keri A. Wehrheim of counsel), for Thomas V. Shaughnessy, Edwin M. Moreta and Thomas V. Shaughnessy Construction Corp., respondents.

TOM, J.P., FRIEDMAN, SWEENY, SAXE, FREEDMAN, JJ.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered January 31, 2012, which granted defendants Shaughnessy, Moreta, and Thomas V. Shaughnessy Construction Corp.'s and defendants New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority and Fuentes's motions for summary judgment dismissing the complaint as against them on the threshold issue of serious injury pursuant to Insurance Law § 5102(d), unanimously modified, on the law, to deny the motions as to plaintiffs Robin Windham's and Cheryl Harper's claims of “significant limitation of use” and “permanent consequential limitation of use” and as to Robin Windham's and plaintiff Kimberly Windham's 90/180–day claims, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered October 12, 2012, which denied Robin's motion to renew and/or to reargue, unanimously dismissed, without costs, as academic and as taken from a nonappealable paper, respectively. Appeal from order, same court and Justice, entered October 12, 2012, which denied Kimberly, Harper, and Chandler's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

This action stems from a motor vehicle accident that took place on December 6, 2004. Plaintiff Robin Windham was driving her car, with passengers plaintiffs Kimberly Windham, Cheryl Harper, and Chandler Windham. Plaintiffs allege that the car was hit hard on the left by the Shaughnessy defendants' cement truck, and then squeezed and hit on the right side by a bus owned by defendant New York City Transit Authority. All plaintiffs allege that they suffered serious injuries as a result, and Robin and Kimberly alleged in their bill of particulars and testified that they missed about four months of work as a result of those injuries and were confined to home.

Defendants made a prima facie showing that none of the plaintiffs suffered a serious injury resulting in “significant limitation” and “permanent consequential limitation” of use ( seeInsurance Law § 5102[d] ). They submitted, among other things, reports by their orthopedist and neurologist, who examined each plaintiff 3 1/2 years after the accident and found full range of motion, negative test results, and resolved sprains in all the body parts claimed to have been injured in the subject accident ( see Kone v. Rodriguez, 107 A.D.3d 537, 537, 967 N.Y.S.2d 359 [1st Dept. 2013] ). They also submitted a report by a radiologist opining that Chandler's claimed injuries were preexisting and degenerative.

[983 N.Y.S.2d 7]

In opposition, Robin raised a triable issue of fact as to the existence of a...