HON. ARLENE P. BLUTH, JSC
Defendants' motion for summary judgment dismissing this action on the grounds that plaintiff did not sustain a "serious injury within the meaning of insurance Law §5012(d) is denied.
In this action, plaintiff allonges at January 19 2010 she sustained personal injuries when she was a pedestrian crossing at the intersection of 168th Street and Amsterdam Avenue in Manhattan. Plaintiff claims that she was struck in the left knee by a vehicle owned by defendant Marte and operated by defendant Gomez and this caused her to fall to the ground.
To prevail on a motion for summary judgment, the defendant has the initial burden to present competent evidence showing that the plaintiff has not suffered a "serious injury"
(see Rodriguez v Goldstein, 182 A.D.2d 396 ). Such evidence includes "affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim" (Shinn
v Catanzaro, 1 A.D.3d 195, 197 [1st Dept 2003], quoting Grossman v Wright, 268 A.D.2d 79, 84 [1st Dept 2000]). Where there is objective proof of injury, the defendant may meet his or her burden upon the submission of expert affidavits indicating that plaintiffs injury was caused by a pre-existing condition and not the accident (Farrington v Go On Time Car Serv., 76 A.D.3d 818 [1st Dept 2010], citing Pommells v Perez, 4 N.Y.3d 566 ). In order to establish prima facie entitlement to summary judgment under the 90/180 category of the statute, a defendant must provide medical evidence of the absence of injury precluding 90 days of normal activity during the first 180 days following the accident (Elias v Mahlah, 2009 NY Slip Op 43 [1st Dept]). However, a defendant can establish prima facie entitlement to summary judgment on this category without medical evidence by citing other evidence, such as the plaintiffs own deposition testimony or records demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting customary daily activities for the prescribed period (id).
Once the defendant meets his or her initial burden, the plaintiff must then demonstrate a triable issue of fact as to whether he or she sustained a serious injury (see Shinn, 1 A.D.3d at 197). A plaintiffs expert may provide a qualitative assessment that has an objective basis and compares plaintiffs limitations with normal function in the context of the limb or body system's use and purpose, or a quantitative assessment that assigns a numeric percentage to plaintiffs loss of range of motion (TourevAvis Rent A Car Sys., 98 N.Y.2d 345, 350-351 ). Further, where the defendant has established a pre-existing condition, the plaintiffs expert must address causation (see Valentin v Pomilla, 59 A.D.3d 184 [1st Dept 2009]; Style v Joseph, 32 A.D.3d 212, 214 [1st Dept 2006]).
In her verified bill of particulars, plaintiff claims that she suffered, inter alia, injury to her left knee, cervical disc bulge, lumbar herniations/bulges, right shoulder sprain, anxiety and personality changes (exh D to moving papers, para. 7), and a 90/180-day claim.
Defendants made a prima facie showing that the plaintiff did not sustain a permanent consequential or significant limitation by offering the following: the affirmed report of their neurologist, Dr. De Jesus who examined plaintiffs cervical and thoracolumbar spine, cranial nerves, reflexes and cerebellar functions, and performed a motor system and sensory exam, and concluded that plaintiff had no neurological disability (exh E to moving papers). Additionally, defendants' submitted the affirmed report of their orthopedist, Dr. Nason who examined plaintiffs cervical and lumbar spine, right shoulder and left knee, and concluded that her cervical and lumbar sprain/strain had resolved, and that her left knee had healed from surgery (exh F).
However, defendants have not met their initial burden with respect to plaintiffs 90/180-day claim. In her affirmation in support of this motion (para. 8), defendants' counsel refers to plaintiffs testimony that her doctors issued letters to her employer indicating that she could not return to work for four months (exh G at 9), but does not dispute the existence of such letters which would support a medically-determined injury, or make any other argument as to why this claim should be dismissed. Accordingly, because defendants did not make their prima facie showing on plaintiffs 90/180-day claim, defendants' motion is denied. See Silverman v MTA Bus Co., 101 A.D.3d 515, 517, 955 N.Y.S.2d 597, 598 (1st Dept 2012) (defendants failed to meet their prima facie burden as to plaintiffs 90/180-day claim since plaintiff alleged that she was confined to home for four months and defendants did not submit medical evidence contradicting her claimed disability during that period).
Even assuming that defendants met their burden on plaintiffs 90/180-day claim, plaintiff raised a triable factual question in opposition to defeat dismissal of the action. Plaintiff submits, inter alia, the affirmation of Dr. McMahon (exh A to opp), the orthopedist who performed surgery on plaintiffs left knee on March 9, 2010, less than two months after the accident. Dr. McMahon states that he first saw plaintiff on March 4, 2010 at which time he examined her, found that the range of motion of her left knee was 0-90 with pain, and reviewed the February 5, 2010 MRI of her left knee. He concluded that the condition of the knee, specifically left bone marrow edema in the lateral condyle, the lateral tibial plateau and fibular head consistent with contusion or bone bruise, required surgery and was not attributable to any degenerative changes based on the presence of fluid and the fact that plaintiff said she had no knee pain prior to the accident. Dr. McMahon also reviewed the January 29, 2010 MRI of plaintiff s cervical spine on March 4, 2013 and concluded that because she was asymptomatic before the accident, and experienced pain after the accident, the disc bulge he saw on the film was not degenerative but rather was caused by the accident, Finally, Dr. McMahon examined plaintiff on July 6, 2012 and found limitations in the range of motion of her left knee and cervical spine. Therefore, plaintiff, through the affirmation of Dr. McMahon, has raised an issue of fact with respect to whether she sustained a permanent consequential or significant limitation to her left knee and cervical spine.
Accordingly, it is
ORDERED that defendants' motion for summary judgment dismissing this action on the grounds that plaintiff did not sustain a "serious injury" within the meaning of ...