DE DIAZ v. KLAUSNER (2024)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about September 16, 2022, which denied defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not meet the serious injury threshold of Insurance Law § 5102(d), unanimously modified, on the law, to dismiss plaintiff's claim of injury to the left hip, and otherwise affirmed, without costs.

Plaintiff alleges that she sustained serious injuries resulting in significant and permanent consequential limitation of use to her right shoulder and cervical spine as a result of an accident that occurred when defendant's vehicle struck her as she was crossing the street (see De Diaz v. Klausner, 198 A.D.3d 475, 156 N.Y.S.3d 16 [1st Dept. 2021]).  She asserts that she sustained serious injuries involving a “significant disfigurement” and within the 90/180-day category.  She also seeks to recover damages for nonserious injuries to her left hip, left shoulder, and lumbar spine.

With respect to the claimed serious injuries involving significant or permanent, consequential limitation of use, defendant met his prima facie burden by submitting evidence that the claimed injuries to the cervical spine and right shoulder were degenerative in origin and not causally related to the accident (see Rickert v. Diaz, 112 A.D.3d 451, 451–452, 976 N.Y.S.2d 80 [1st Dept. 2013]).  Plaintiff raised triable issues of fact through objective evidence of abnormalities in her MRIs of these body parts, along with her treating physicians’ findings of range of motion limitations, both shortly after the accident (see Bonilla v. Vargas–Nunez, 147 A.D.3d 461, 462, 46 N.Y.S.3d 594 [1st Dept. 2017]), and continuing at subsequent and recent examinations, raising an issue of fact as to permanency (see Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 481–482, 915 N.Y.S.2d 529 [1st Dept. 2011]).  Plaintiff's physicians adequately addressed defendant's evidence that the injuries were degenerative by opining, based on examination, the lack of prior symptoms, and observations during surgery, that plaintiff's injuries were causally related to the accident, thereby ascribing a different, yet equally plausible explanation for the conditions (see Moreira v. Mahabir, 158 A.D.3d 518, 519, 71 N.Y.S.3d 38 [1st Dept. 2018]).

Contrary to defendant's contentions, if “a jury determines that plaintiff has met the threshold for serious injury, it may award damages for all of her injuries causally related to the accident,” even those that do not meet the serious injury threshold (Pouchie v. Pichardo, 173 A.D.3d 643, 645, 105 N.Y.S.3d 410 [1st Dept. 2019], citing Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549, 898 N.Y.S.2d 110 [1st Dept. 2010]).  Plaintiff submitted evidence raising an issue of fact as to whether her claimed lumbar spine and left shoulder injuries are causally related to the accident, and thus she may be able to recover damages for those injuries, despite conceding that they do not meet the serious injury threshold (see e.g. Hernandez v. Marcano, 161 A.D.3d 676, 677–678, 78 N.Y.S.3d 54 [1st Dept. 2018]).  However, none of plaintiff's experts adequately explained why the accident, rather than her pre-existing, congenital left hip condition, caused her left hip limitations, requiring dismissal of this claim (see Thompson v. Bronx Merchant Funding Servs., LLC, 166 A.D.3d 542, 543, 90 N.Y.S.3d 16 [1st Dept. 2018]).

Defendant failed to meet his summary judgment burden with respect to plaintiff's claim that her postsurgical scars on her right shoulder constitute a significant disfigurement under Insurance Law § 5102(d), as his experts failed to note whether these scars were well-healed or otherwise “unobjectionable” (see e.g. Feutcher v. Composite Transit, 171 A.D.3d 647, 648, 99 N.Y.S.3d 289 [1st Dept. 2019];  Sidibe v. Cordero, 79 A.D.3d 536, 913 N.Y.S.2d 78 [1st Dept. 2010]).  Defendant also failed to meet his summary judgment burden with respect to plaintiff's 90/180-day claim, as the bill of particulars alleges that plaintiff had been confined to her home since the date of the accident and defendant did not submit medical evidence contradicting her claimed disability during that period (see Silverman v. MTA Bus Co., 101 A.D.3d 515, 517, 955 N.Y.S.2d 597 [1st Dept. 2012]).  In any event, plaintiff's deposition testimony, along with notes from her treating providers indicating that she was disabled during the relevant period, sufficiently raised an issue of fact with respect to her 90/180-day claim (see Massillon v. Regalado, 176 A.D.3d 600, 602, 112 N.Y.S.3d 40 [1st Dept. 2019]).