FISHMAN v. ISALES (2024)

Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered October 2, 2023, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on his claims that his occipital neuralgia, cubital tunnel syndrome, and temporomandibular joint (TMJ) disorder constitute “serious injuries” under Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants raised a triable issue of fact as to whether plaintiff's occipital neuralgia was a causally related “serious injury” under Insurance Law § 5102(d) through the affirmed reports of their orthopedic expert and neurology expert, who found normal range of motion in plaintiff's cervical spine and concluded that his MRI showed pre-existing degenerative conditions (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 536, 102 N.Y.S.3d 588 [1st Dept. 2019];  Macdelinne F. v. Jimenez, 126 A.D.3d 549, 551, 6 N.Y.S.3d 40 [1st Dept. 2015]).  Significantly, plaintiff had also been involved in three prior motor vehicle accidents, injuring the same body parts claimed in this action (see Dorrian v. Cantalicio, 101 A.D.3d 578, 578, 957 N.Y.S.2d 47 [1st Dept. 2012]).  Since defendants raised a triable issue of fact as to causation, the motion court correctly denied summary judgment on plaintiff's 90/180 day claim (see Perez v. Ahadzi, 224 A.D.3d 556, 557, 205 N.Y.S.3d 81 [1st Dept. 2024]).

The motion court properly denied plaintiff summary judgment on his other injuries following a second motor vehicle accident, as relevant discovery remained outstanding (see e.g. Cruz v. Skeritt, 140 A.D.3d 554, 32 N.Y.S.3d 504 [1st Dept. 2016]).  In any event, defendants raised triable issues of fact as to whether these injuries were caused by the subject accident (see Dorrian, 101 A.D.3d at 578, 957 N.Y.S.2d 47).