S. Kritzer & Associates, P.C., Smithtown (David S.
Kritzer of counsel), for appellant.
McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D.
Grace of counsel), for Victor Cesar Gonzalez-Vargas,
Maroney O'Connor LLP, New York (Ross T. Herman of
counsel), for Juan R. Hernandez, respondent.
J.P., Sweeny, Renwick, Moskowitz, Kapnick, JJ.
Supreme Court, Bronx County (Betty Owen Stinson, J.), entered
September 14, 2015, which granted defendants' separate
motions for summary judgment dismissing the complaint on the
threshold issue of serious injury within the meaning of
Insurance Law § 5102(d), unanimously modified, on the
law, to deny the motions to the extent they sought dismissal
of plaintiff's claims that she suffered serious injuries
involving two ribs, her cervical spine and her lumbar spine,
and otherwise affirmed, without costs. Order, same court and
Justice, entered March 2, 2016, which, to the extent appealed
from, denied plaintiff's motion to renew, unanimously
affirmed, without costs.
satisfied their prima facie burden of demonstrating that
plaintiff did not sustain a serious injury to her right
shoulder, cervical spine or lumbar spine by submitting the
reports of their orthopedists and neurologists, who found
full range of motion and opined that plaintiff's injuries
had resolved ( see Birch v 31 N. Blvd., Inc., 139
A.D.3d 580, 580-581 [1st Dept 2016]). They also submitted an
MRI report prepared by plaintiff's radiologist, who found
no evidence of a rotator cuff tear in the right shoulder, a
report of a portable chest X-ray taken in the emergency room,
finding no rib fracture, and the report of an expert in
emergency medicine, who opined that plaintiff's emergency
room records were inconsistent with her claimed serious
opposition, plaintiff raised an issue of fact concerning her
claimed rib fractures by submitting the affirmed report of
her radiologist, who took a second X ray a month after the
accident, this one including multiple views, which revealed
two fractured ribs on the right side. Although the initial X
ray had not revealed those fractures, the emergency room
records show that plaintiff complained of right-side rib pain
days after the accident, and plaintiff's treating doctor
diagnosed rib fracture or contusions caused by the accident.
The record thus presents a factual issue as to whether the
fractures were causally related to the accident ( see
Uribe v Jimenez, 133 A.D.3d 844');">133 A.D.3d 844 [2d Dept 2015]).
also raised an issue of fact as to her claim of significant
and permanent consequential limitations of use of her
cervical and lumbar spine. She submitted hospital records
reflecting that she did make contemporaneous complaints of
neck and back pain, the affirmed reports of her treating
physicians who documented limitations in range of motion
shortly after the accident, and affirmed reports of her pain
management specialist who found continuing significant
limitations three years later. Both treating physicians
opined that plaintiff's spinal injuries were causally
related to the accident. Plaintiff's pain management
physician relied on MRI reports, included in the record,
which revealed bulging and herniated discs in her cervical
spine and bulging discs in her lumbar spine. These reports
may be considered as they are not the sole evidence submitted
in opposition to the motion ( see Rivera v Super Star
Leasing, Inc., 57 A.D.3d 288, 288 [1st Dept 2008]).
Although a subsequent follow-up MRI of the cervical spine
over a year after the accident revealed degenerative changes,
the report of the MRI taken shortly after the accident
included no such findings, thus presenting issues of fact not
subject to determination on a motion for summary judgment.
submissions, however, were insufficient to raise an issue of
fact as to her claimed right shoulder injury, since her
medical experts failed to address or explain the absence of
findings of shoulder injury in her initial MRI. The
additional medical affirmation that she submitted on renewal,
which showed that she had surgery to repair a torn rotator
cuff, acknowledged the existence of degenerative changes, but
failed to adequately explain how the tear was caused by the
accident three years earlier ( see Rivera v Fernandez
& Ulloa Auto Group, 123 A.D.3d 509, 509-510 [1st
Dept 2014], affd 25 N.Y.3d 1222');">25 N.Y.3d 1222 ).
opposition to defendants' prima facie showing of the lack
of a 90/180-day claim, plaintiff did not submit sufficient
medical or other evidence to support her claim that she was
disabled for more than three months after the accident ...