PINZON v. GONZALEZ (2012)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about March 1, 2011, which granted defendant's motion for summary judgment seeking to dismiss the complaint on the ground that plaintiff did not raise an issue of fact as to whether she suffered a serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion denied.

 Defendant met her prima facie burden on summary judgment with the submission of the affirmed reports of experts that established that plaintiff did not suffer a serious injury as a result of the accident at issue and found instead that she suffered from pre-existing degenerative conditions.

 However, plaintiff raised an issue of fact as to whether she sustained serious injuries to her left knee, cervical spine, and lumbar spine by submitting the affirmed reports of radiologists stating that the MRIs of those body parts showed a tear of the medial meniscus and tear of the medial collateral ligamentous complex, disc herniations of the cervical spine, and lumbar disc bulging, along with a contemporaneous examination by plaintiff's treating physician showing limited ranges of motion in each of those body parts (Insurance Law § 5102[d];  see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ).

 Plaintiff raised an issue of fact as to the permanence of those injuries by submitting the affirmed report of a neurologist who conducted a recent examination showing limited ranges of motion in all of those body parts (see Antonio v. Gear Trans Corp., 65 A.D.3d 869, 885 N.Y.S.2d 48 [2009];  Thompson v. Abbasi, 15 A.D.3d 95, 97, 788 N.Y.S.2d 48 [2005] ).   Contrary to defendant's argument, this report does refute the findings of defendant's experts as to the degenerative nature of plaintiff's condition by specifically attributing the injuries to the accident (see Williams v. Perez, 92 A.D.3d 528, 938 N.Y.S.2d 536 [2012] ), and specifically identifying and disagreeing with two of defendant's experts (see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011];  Fuentes v. Sanchez, 91 A.D.3d 418, 936 N.Y.S.2d 151 [2012] ).