MENDOZA v. TWO GO INC (2019)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about December 4, 2017, which granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to establish that he suffered a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established prima facie that plaintiff did not suffer a serious injury to his cervical or lumbar spine through the affirmed reports of their radiologist and neurologist, who found that plaintiff's CT scans were normal, plaintiff had full range of motion, and there was no evidence of traumatic injury (see Holloman v. American United Transp. Inc., 162 A.D.3d 423, 423, 75 N.Y.S.3d 26 [1st Dept. 2018];  Hernandez v. Marcano, 161 A.D.3d 676, 677, 78 N.Y.S.3d 54 [1st Dept. 2018] ).  Defendants also relied on plaintiff's deposition testimony that he reinjured the same body parts in an accident one year later.

In opposition, plaintiff submitted radiologist's reports finding that plaintiff had bulging and herniated discs in his spine after the subject accident, but did not provide competent medical evidence of the extent and duration of the disc injury sufficient to raise an issue of fact as to whether those conditions constituted a “serious injury” (see DeJesus v. Paulino, 61 A.D.3d 605, 608, 878 N.Y.S.2d 29 [1st Dept. 2009];  see also Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005];  Rivera v. Gonzalez, 107 A.D.3d 500, 500, 967 N.Y.S.2d 60 [1st Dept. 2013] ).  Plaintiff's neurologist found only a minor limitation in one plane of lumbar spine range of motion and no limitations in cervical range, which was insufficient to demonstrate a serious injury involving significant or permanent limitations in use (see Nakamura v. Montalvo, 137 A.D.3d 695, 696, 29 N.Y.S.3d 285 [1st Dept. 2016];  Phillips v. Tolnep Limo Inc., 99 A.D.3d 534, 951 N.Y.S.2d 870 [1st Dept. 2012] ).  Further, the neurologist's opinion that plaintiff's current limitation was caused by the subject accident was speculative, as he failed to address the impact of plaintiff's subsequent accident (see Zhijian Yang v. Alston, 73 A.D.3d 562, 563, 903 N.Y.S.2d 4 [1st Dept. 2010] ).

As for plaintiff's 90/180 day claim, defendants, relying on his admissions in his deposition, met their initial burden, and plaintiff offered no competent medical evidence in support of the claim.