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.
Decided on April 26, 2012 Andrias, J.P., Saxe, Friedman, Moskowitz, Richter, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 6, 2010, which denied defendants' motion for summary judgment dismissing the complaint, modified, on the law, to dismiss the 90/180-day category of plaintiff's Insurance Law § 5102(d) claim, and otherwise affirmed, without costs.
In this action for personal injuries plaintiff alleges that she sustained a serious injury as a result of a car accident that occurred on June 30, 2007 at the intersection of East 223rd Street and White Plains Road, in the Bronx. Defendant Leon, a taxi driver, testified at his deposition that he was traveling northbound on White Plains road at approximately 20 miles per hour when he reached the intersection of East 223rd. At that point, a truck was to defendant driver's left on East 223rd and was obscuring his view of that street. Plaintiff testified at her deposition that she was stopped at the stop sign on East 223rd before proceeding to inch her way into the intersection. She was traveling at a speed of approximately 5 to 10 miles per hour when her car collided with defendant's car. The following day plaintiff went to the emergency room at Jacobi Hospital complaining of back and right shoulder pain. She was examined and released that day. Approximately a week later, on July 9, 2007, plaintiff was examined by Dr. Gautam Khakhar and continued to see him for five months following the accident, during which time she underwent physical therapy for her back, neck, and right shoulder.
Plaintiff commenced this action alleging that she sustained a serious injury under Insurance Law § 5102(d). Defendants subsequently moved for summary judgment dismissing the complaint on the grounds that plaintiff was negligent as a matter of law because she failed to yield the right of way at the intersection; and on the grounds that plaintiff failed to establish that she sustained a serious injury. The motion court denied defendants' motion in its entirety.
Notwithstanding that plaintiff's approach into the intersection was regulated by a stop sign and defendant driver's approach was not regulated by a traffic control device, issues of fact about plaintiff stopping at the stop sign and which vehicle entered the intersection first preclude a finding as a matter of law that plaintiff's conduct was the sole proximate cause of the accident (see Rivera v Berrios Trans Serv. Inc., 64 AD3d 416 ). Further, plaintiff's testimony that she was traveling between 5 and 10 miles per hour and that the impact of the two vehicles was "very heavy" presents issues of fact whether defendant driver was negligent (Nevarez v S.R.M. Mgt. Corp., 58 AD3d 295, 299 ).
Although defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), plaintiff raised sufficient issues of fact to warrant denial of summary judgment. On review of plaintiff's MRI films, defendants' radiologist noted that there were disc bulges that were "chronic and degenerative in origin" and that there was "no evidence of acute traumatic injury to the lumbar spine such as vertebral fracture, asymmetry of the disc spaces, ligamentous tear or epidural hematoma." These findings establish prima facie that any injury to plaintiff's lumbar spine was not causally related to the accident (see Depena v Sylla, 63 AD3d 504 , lv denied 13 NY3d 706 ). The burden then shifted to plaintiff to raise a triable issue of fact.
In opposition to defendants' motion, plaintiff submitted the affirmation of her treating physician, Dr. Khakhar, who first saw her nine days after the accident. He concluded that plaintiff's injuries were caused by the accident. Dr. Khakhar based this conclusion on the MRI report of the lumbrosacral spine and right shoulder taken on July 16, 2007,[FN1] electrodiagnostic testing, the patient's medical records, and objective clinical examinations of plaintiff, which revealed a painful and limited range of motion when compared to normal ranges, that began a week after the accident and continued for a period of approximately five months thereafter. This submission, which was based on objective findings by the doctor, as well as plaintiff's subjective complaints, was sufficient to substantiate a claim of serious injury (Yuen v Arka Memory Cab Corp., 80 AD3d 481 ).
Although the dissent makes much of plaintiff's failure to annex the MRI reports, Dr. Khakhar affirmed that he reviewed them, and then made his own clinical findings based on the history provided by plaintiff and his education, training and experience (Baez v Boyd, 90 AD3d 524  [plaintiff raised an issue of fact by submitting the affirmed report of his treating orthopedist, who had reviewed the MRI films]). Moreover, although Dr. Khakhar did not explain what was in the MRI report or whether the MRI report he reviewed was affirmed, Dr. Khakhar's report itself was affirmed and is sufficient to raise an issue of fact. The dissent cites no cases in support of its argument that plaintiff's doctor must describe the specific contents of the MRI report for plaintiff to defeat a summary judgment motion.
Furthermore, although Dr. Khakhar did not expressly reject defendants' expert's conclusion that the injuries were degenerative in origin, by attributing the injuries to a different, yet equally plausible cause, plaintiff raised a triable issue of fact (see Yuen, 80 AD3d at 482; Linton v Nawaz, 62 AD3d 434, 439-440 , affd on other grounds 14 NY3d 821 ). Although "[a] factfinder could of course reject this opinion" (Perl v Meher, 18 NY3d 208, 219 ), we cannot say on this record, as a matter of law, that plaintiff's injuries had no causal connection to the accident.
The dissent unpersuasively argues that the Court of Appeals' brief references to Pommells v Perez (4 NY3d 566 ) in the Perl opinion mandate a ruling in defendant's favor unless plaintiff's submissions specifically explain why the conclusion of degeneration by defendants' doctors is incorrect; this is not what Perl holds. Rather, the Court in Perl concluded that the plaintiff's contrary evidence presented on a summary judgment motion, even if "hardly powerful," merely must be sufficient to raise an issue of fact (Perl, 18 NY3d at 219). In fact, the Perl opinion focuses on whether the numerical measurements of range of motion were contemporaneous, which is not the central issue in this case. As the dissent notes, the record here does not contain as much detail in the treating physician's affirmation as was contained in the Perl affirmation, but such detail is not required. Plaintiff, at her deposition, explained that she had not previously been injured before this accident, and Dr. Khakhar noted she was acutely symptomatic when he saw her about a week after the accident. Here, this information, combined with Dr. Khakhar's affirmation and conclusion as to causation, contained sufficient detail. The dissent's suggestion that there is a specific catechism that plaintiff's doctor must recite ignores the central purpose of a summary judgment motion, which is to determine whether there are factual issues to be resolved at trial.
Nor is Carrasco v Mendez (4 NY3d 566 , supra), one of the three appeals decided in Pommells, similar to plaintiff's case, as the dissent contends [FN2]. Carrasco's original doctor concluded in his final report that Carrasco's pain was related to a prior degenerative condition, thereby agreeing with the defendant's analysis (id. at 579-580). Dr. Khakhar, however, found just the opposite with regard to plaintiff, and concluded that her injuries were casually connected to the accident. The dissent incorrectly argues that Carrasco turns on the lack of detail in the doctor's conclusions. However, the Carrasco Court found that the plaintiff "did not refute defendant's evidence of a pre-existing degenerative condition" because plaintiff's second doctor's report "was entirely consistent with those formations identified by the MRI" and with the conclusion of the defendant's expert (Id. at 580).
The court should have dismissed plaintiff's 90/180-day claim. Plaintiff's deposition testimony that she was confined to her home for only one month after the accident and her treating physiatrist's statement that she was "partially incapacitated" are insufficient to raise the inference that plaintiff was prevented from performing her usual and customary activities for at least 90 of the 180 days following the accident (Insurance Law § 5102[d]; see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522, 523 ; Valentin v Pomilla, 59 AD3d 184, 186-187 ). ...