HENRY v. CARR (2018)

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about July 24, 2017, which, insofar as appealed from, denied defendant's motion for summary judgment dismissing plaintiff's claims that he sustained serious injuries to his cervical spine and lumbar spine within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to grant the motion as to the cervical spine claim, and otherwise affirmed, without costs.

Defendant established that plaintiff did not sustain a serious injury involving significant or permanent consequential limitations of use of his cervical spine or lumbar spine through the affirmed report of her expert orthopedist, who found normal ranges of motion and no objective evidence of traumatic injury in the subject body parts, and opined that any injury to these body parts had resolved (see Reyes v. Se Park, 127 A.D.3d 459, 460, 8 N.Y.S.3d 22 [1st Dept. 2015];  Rickert v. Diaz, 112 A.D.3d 451, 976 N.Y.S.2d 80 [1st Dept. 2013] ).  Defendant also submitted post-accident treatment records that indicated that plaintiff did not have limited range of motion.  However, defendant's expert did not raise any issue as to causation, since he acknowledged that the accident caused the resolved cervical and lumbar spine injuries (see Moreira v. Mahabir, 158 A.D.3d 518, 71 N.Y.S.3d 38 [1st Dept. 2018];  Santos v. New York City Tr. Auth., 99 A.D.3d 550, 952 N.Y.S.2d 179 [1st Dept. 2012] ).

In opposition, plaintiff raised an issue of fact as to his claimed lumbar spine injury through the affirmed report of his orthopedic surgeon, who examined plaintiff on several occasions, both shortly after the accident and more recently, and observed significant limitations in range of motion, as well as positive results on objective tests for lumbar injury (see Moreira v. Mahabir, 158 A.D.3d at 518–519, 71 N.Y.S.3d 38;  Encarnacion v. Castillo, 146 A.D.3d 600, 601, 44 N.Y.S.3d 744 [1st Dept. 2017] ).  In addition, plaintiff's radiologist averred that his MRI revealed conditions of the lumbar spine discs.  The orthopedist's post-accident findings of limitations in range of motion conflict with the medical records submitted by defendant, raising an issue of fact, particularly since symptoms may vary in severity over time (see Perl v. Meher, 18 N.Y.3d 208, 218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ).  Although plaintiff was not required to address causation, his orthopedist did address the fact that plaintiff had suffered a prior lumbar spine injury, noted that plaintiff had fully recovered from that injury before the subject accident, and opined that plaintiff's current conditions were causally related to the accident (see id. at 219, 936 N.Y.S.2d 655, 960 N.E.2d 424).

As to the claimed cervical spine injury, however, plaintiff failed to submit evidence sufficient to raise an issue of fact as to whether any sprain or strain caused by the accident involved significant or permanent consequential limitations in use.  His physician did not examine the cervical spine at any time, and plaintiff effectively abandoned his claim of cervical spine injury by failing to address it in his opposition to defendant's motion (see Bray v. Rosas, 29 A.D.3d 422, 815 N.Y.S.2d 69 [1st Dept. 2006] ).  Nevertheless, should plaintiff establish a serious injury of the lumbar spine at trial, he will be entitled to recover for other injuries causally related to the accident (see Osborne v. Diaz, 104 A.D.3d 486, 487, 961 N.Y.S.2d 117 [1st Dept. 2013];  Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549, 898 N.Y.S.2d 110 [1st Dept. 2010] ).