LEWIS v. REVELLO (2019)

Order, Supreme Court, New York County (Adam Silvera, J.), entered April 19, 2018, which denied defendant's motion for summary judgment dismissing the complaint based on plaintiff's inability to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to dismiss plaintiff's 90/180–day claim, and otherwise affirmed, without costs, and order, same court, Justice and entry date, which granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff seeks to recover for injuries sustained to her back and left hip as the result of being hit by defendant's vehicle while she was crossing the street.

In support of his motion for summary judgment dismissing the complaint, defendant submitted, inter alia, the expert report of an orthopedist who found plaintiff had full range of motion in her left hip and apparently found a significant 30 degree limitation in range of motion in the lumbar spine.  The orthopedist opined that plaintiff's injuries, as found in MRI reports, were caused by the accident but fully resolved.  The orthopedist's findings were sufficient to meet defendant's prima facie burden concerning the claims of left hip injury, but, since his findings of limitations in the lumbar spine conflicted with his findings of an absence of serious injury, the burden did not shift on the lumbar spine claims (see Santos v. New York City Tr. Auth., 99 A.D.3d 550, 550, 952 N.Y.S.2d 179 [1st Dept. 2012]; see Susino v. Panzer, 127 A.D.3d 523, 524, 7 N.Y.S.3d 120 [1st Dept. 2015]; Clark v. Aquino, 113 A.D.3d 1076, 1076, 978 N.Y.S.2d 546 [4th Dept. 2014]).  Defendant also submitted the report of a radiologist who opined that plaintiff's hip conditions were not causally related to the accident, which conflicted with the orthopedist's opinion as to causation, and therefore did not shift the burden of proof to plaintiff on that issue (see Johnson v. Salaj, 130 A.D.3d 502, 502–503, 13 N.Y.S.3d 418 [1st Dept. 2015]).

In any event, plaintiff raised triable issues of fact through the report of her expert orthopedist, who, among other things, documented limitations in range of motion of her left hip and lumbar spine, and explained his conclusion that the left hip injury was causally related to the accident (see Gomez v. Davis, 146 A.D.3d 456, 456, 45 N.Y.S.3d 399 [1st Dept. 2017]; see also Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002]).  Defendant's argument that plaintiff failed to explain a gap in her treatment is unavailing, since it ignores her deposition testimony that she in fact was continuing treatment with various medical providers.  Moreover, since defendant improperly raised the argument for the first time in reply, plaintiff did not have any opportunity to respond by submitting supporting proof of such treatment (see Pauling v. City Car & Limousine Servs., Inc., 155 A.D.3d 481, 65 N.Y.S.3d 19 [1st Dept. 2017]).

However, plaintiff's “90/180–day” claim should have been dismissed, since defendant submitted her deposition testimony that she only missed three days of work, and returned to work after working from home for another five days.  Plaintiff submitted no evidence to raise an issue of fact on this claim (see Thompson v. Bronx Merchant Funding Servs., LLC, 166 A.D.3d 542, 544, 90 N.Y.S.3d 16 [1st Dept. 2018]; Frias v. Son Tien Liu, 107 A.D.3d 589, 590, 967 N.Y.S.2d 382 [1st Dept. 2013]).

As to liability, plaintiff established her prima facie entitlement to partial summary judgment by showing that she was crossing the street within the crosswalk, with the light in her favor, when defendant's vehicle struck her while making a left turn (see Perez–Hernandez v. M. Marte Auto Corp., 104 A.D.3d 489, 490, 961 N.Y.S.2d 384 [1st Dept. 2013]).  Plaintiff was not required to demonstrate her freedom from comparative fault to be entitled to partial summary judgment as to defendant's liability (see Derix v. Port Auth. of N.Y. & N.J., 162 A.D.3d 522, 522, 79 N.Y.S.3d 146 [1st Dept. 2018]; see generally Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018]).