FALL v. GREYHOUND LINES INC (2024)

Order, Supreme Court, New York County (James G. Clynes, J.), entered on or about March 9, 2023, which denied defendants’ motion for summary judgment dismissing the complaint on grounds that plaintiff did not sustain a serious injury under Insurance Law § 5102(d), unanimously affirmed, without costs.

In opposition to defendant's prima facie showing of entitlement to judgment as a matter of law, plaintiff's medical submissions raise a triable issue of fact as to whether her alleged traumatic brain injury (TBI) constitutes a serious injury under Insurance Law § 5102(d) (see Snyder v. Daw, 175 A.D.3d 1045, 1047, 106 N.Y.S.3d 710 [4th Dept. 2019]).  Plaintiff's neurologist submitted an affirmation stating that, shortly after the accident, plaintiff had headaches, exhibited balance and equilibrium impairments, and demonstrated difficulties with visual spatial tasks, attention, memory, and recall (see id.;  Flanders v. National Grange Mut. Ins. Co., 124 A.D.3d 1035, 1037–1038, 1 N.Y.S.3d 542 [3d Dept. 2015]).  Based on these observations, along with plaintiff's Montreal Cognitive Assessment score and positive findings in her brain imaging scans, the neurologist concluded that plaintiff had sustained a TBI as a result of the accident (see id.;  cf.  Rumford v. Singh, 130 A.D.3d 1002, 1004, 14 N.Y.S.3d 462 [1st Dept. 2015]).  Defendants’ arguments regarding the sufficiency of plaintiff's TBI evidence are unavailing (see e.g. Scott v. Posas, 194 A.D.3d 454, 456 n. 2, 148 N.Y.S.3d 96 [1st Dept. 2021]).

Plaintiff also raised a triable issue of fact with respect to her bilateral shoulder injuries, as her treating physician noted reduced range of motion in both shoulders two months after the accident (see e.g. Garner v. Tong, 27 A.D.3d 401, 811 N.Y.S.2d 400 [1st Dept. 2006]).  He also found that these observations and plaintiff's complaints were consistent with MRI findings showing labral tears in both shoulders (see Vaughan v. Leon, 94 A.D.3d 646, 648, 943 N.Y.S.2d 63 [1st Dept. 2012]).  Though the MRI reports are unaffirmed, they may be considered in opposition to summary judgment, as they were relied on by defendants’ experts (see Mulligan v. City of New York, 120 A.D.3d 1155, 1156, 993 N.Y.S.2d 24 [1st Dept. 2014];  see e.g. Clemmer v. Drah Cab Corp., 74 A.D.3d 660, 661, 905 N.Y.S.2d 31 [1st Dept. 2010]).