ESCOBAR v. GUZMAN (2009)

Supreme Court, Appellate Division, First Department, New York.

Yolanda ESCOBAR, Plaintiff-Respondent, v. Alberto GUZMAN, et al., Defendants-Appellants.

Decided: March 05, 2009

TOM, J.P., SAXE, CATTERSON, MOSKOWITZ, DeGRASSE, JJ.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Colin F. Morrissey of counsel), for appellants. The Edelsteins, Faegenburg & Brown, LLP, New York (Evan M. Landa of counsel), for respondent.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about December 11, 2007, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants met their initial burden of establishing prima facie that plaintiff's alleged injuries did not satisfy the no-fault serious injury threshold (Insurance Law § 5102[d] ). Defendants' expert concluded that plaintiff suffered from degenerative disc disease. This was based on his review of the MRI performed at the facility of plaintiff's expert, Dr. Roskin, on June 7, 2004. Although defendants failed to address the latter's contemporaneous MRI examination report of herniated discs, a finding of degenerative disc disease is not inconsistent with the claimed herniations.

Plaintiff in opposition raised a triable issue of fact through the affirmed report of Dr. Augustyniak and the MRI report of Dr. Roskin (see Prestol v. McKissock, 50 A.D.3d 600, 856 N.Y.S.2d 598 [2008] ). Similarly, the affirmed letters of Dr. Patel as to plaintiff's inability to resume work until September 2005 sufficiently raised a factual issue as to the 90/180 category.

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