Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered on or about March 20, 2008, which denied defendants' motion for summary judgment dismissing the complaint for lack of a serious injury as required by Insurance Law § 5102(d), affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., McGuire, Moskowitz, DeGrasse, Freedman, JJ.
Defendants' examining physician noted limitations in range of motion with respect to plaintiff June's left knee and lumbar spine and with respect to plaintiff Smalls' right shoulder and cervical and lumbar spines, and plaintiffs' MRI results showed disc herniations and bulges, a tear to June's left meniscus, and a labral tear in Smalls' right shoulder. The cited impairments are consistent with plaintiffs' description that June hit his left knee against the dashboard, and that Smalls' upper body hit the steering wheel, when defendants' car collided with them, and the doctor's notes and the MRI results support a finding of serious injury within the meaning of Insurance Law § 5102 (see Guerrero v Bernstein, 57 AD3d 845 ; Noriega v Sauerhaft, 5 AD3d 121, 122 ).
In the circumstances presented, particularly the fact that plaintiffs were relatively young (June was 31 years old and Smalls 25 at the time of the accident), defendants' claim that the abnormal MRI findings and restricted ranges of motion were due to degenerative changes unrelated to the accident requires further elaboration to satisfy defendants' burden on the motion, to establish prima facie entitlement to summary judgment (see Coscia v 938 Trading Corp., 283 AD2d 538 ).
All concur except McGuire, J. who dissents in a memorandum as follows:
I disagree with the majority's conclusion that the order denying defendants' motion for summary judgment dismissing the complaint should be affirmed. Accordingly, I respectfully dissent.
Plaintiffs were the driver and passenger of a vehicle involved in a motor vehicle accident on November 28, 2004 with a vehicle owned and operated by defendants. Plaintiffs commenced this action against defendants seeking to recover damages; June alleged that he sustained injuries to his left knee and the cervical and lumbar portions of his spine, and Smalls alleged that he sustained injuries to his right shoulder and the cervical and lumbar portions of his spine. Defendants moved for summary judgment dismissing the complaint in its entirety, arguing that neither of the plaintiffs sustained a "serious injury" under Insurance Law § 5102(d). Notably, defendants asserted that both plaintiffs had pre-existing conditions and that defendants' alleged negligence was not a proximate cause of the injuries of either of plaintiffs.
In support of their motion, defendants submitted the affirmation of a radiologist who reviewed MRI films of June's spine taken on December 18, 2004, approximately three weeks after the accident. The radiologist stated that "Review of the lumbar spine MRI examination performed three weeks following the accident reveals desiccation at the L5-S1 intervertebral disc level. This is a drying out of disc material, a degenerative process, which could not have occurred in less than three [weeks] time and clearly predates the 11/28/04 accident. Bulging at this level is seen. Bulging is not a traumatic abnormality. It is degeneratively induced, related to ligamentous laxity. No osseous, ligamentous, or intervertebral disc abnormalities are seen attributable to the 11/28/2004 accident. No post-traumatic changes are seen."
With respect to the MRI films of June's cervical spine, the radiologist stated that the films showed "cervical straightening, a nonspecific finding, frequently related to patient position and comfort for the examination," and that "[n]o recent or post-traumatic changes" were present.
The radiologist also reviewed MRI films of June's left knee taken approximately one month after the accident. Her review of those films "reveale[d] [a] grade II mucoid degenerative signal change in the posterior horn of the medial meniscus. As the name implies, this is a[n] intrasubstance, degenerative process without traumatic basis or causal relationship to the 11/28/04 accident. The chronicity is further evident by the associated out-pouching of the synovial lining, the parameniscal cyst which is indicative of a long term process."
An orthopedic surgeon examined June at defendants' behest. The surgeon opined, among other things, that June's spinal condition was the result of degenerative changes. The surgeon also opined that June did not suffer from any limitation in the range of motion in his cervical spine, had only minor limitations in the range of motion in his ...