CELESTINE v. BONTE (2024)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about August 1, 2023, which, insofar as appealed from as limited by the briefs, granted the motion of defendants Brianna Bonte and Empress Ambulance Service LLC for summary judgment dismissing plaintiff's claims on the ground that he did not meet the serious injury threshold of Insurance Law § 5102(d) to the extent of dismissing plaintiff's claims alleging serious injury to his right elbow and right ankle and his 90/180-day claim, unanimously affirmed, without costs.

Defendants do not appeal from that part of the order denying their motion seeking to dismiss plaintiff's claims that he sustained serious injuries to his cervical spine, lumbar spine, right knee, and right shoulder.  It is well settled that if a jury determines that the plaintiff has met the threshold for serious injury for any of his injuries, then it may award him damages for all injuries causally related to the accident, including those that do not meet the serious injury threshold, like the claimed injuries to his right elbow and right ankle (see Morales v. Cabral, 177 A.D.3d 556, 558, 113 N.Y.S.3d 684 [1st Dept. 2019];  Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549, 898 N.Y.S.2d 110 [1st Dept. 2010]).  Contrary to defendants' contention on appeal, there has been no finding that the claimed right elbow and right ankle injuries were not causally related to the accident.  Accordingly, the order appealed from does not preclude plaintiff from presenting evidence of the injuries sustained to his elbow and ankle at trial.

The court properly dismissed plaintiff's 90/180-day claim based on his deposition testimony that he was not advised by any of his treating medical providers to refrain from returning to work and in fact did return to work five weeks after the accident (see Rivera v. Lopez–Reyes, 203 A.D.3d 554, 555, 162 N.Y.S.3d 697 [1st Dept. 2022];  Blake v. Cadet, 175 A.D.3d 1199, 1200, 109 N.Y.S.3d 266 [1st Dept. 2019]).