WENEGIEME v. HARRIOTT (2018)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered October 6, 2016, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion with respect to plaintiff's claim of serious injury to her cervical and lumbar spine and the 90/180 day claim, and otherwise affirmed, without costs.

Assuming defendants made a prima facie showing that plaintiff did not sustain a serious injury to her cervical spine or lumbar spine, plaintiff raised triable issues of fact as to those claims.  In support of their motion, defendants submitted MRI reports showing multiple bulging discs and a herniated disc, as well as other medical records.  Since the records were properly before the court and not disputed by defendants, plaintiff was entitled to rely upon them to show objective evidence of injury (Bent v. Jackson, 15 A.D.3d 46, 47–48, 788 N.Y.S.2d 56 [1st Dept. 2005];  see also Mitchell v. Calle, 90 A.D.3d 584, 585, 936 N.Y.S.2d 23 [1st Dept. 2011] ).  Plaintiff demonstrated the existence of significant limitations in spinal range of motion, both shortly after the accident and recently, through the affirmed report of her treating physiatrist (see Castillo v. Abreu, 132 A.D.3d 520, 521, 18 N.Y.S.3d 378 [1st Dept. 2015] ), who also opined that plaintiff's limitations were causally related to the accident (see Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [1st Dept. 2011] ).

Plaintiff's gap in treatment is not dispositive, as she explained that, after 11 months of therapy, her physician told her any further treatment would be palliative in nature.  Moreover, her physician stated that her condition remained persistent throughout treatment (see Roldan v. Conti, 137 A.D.3d 507, 508, 26 N.Y.S.3d 472 [1st Dept. 2016];  see also Ramkumar v. Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 976 N.Y.S.2d 1, 998 N.E.2d 801 [2013] ).

Defendants made a prima facie showing that plaintiff's shoulder injuries were not causally related to the accident, but involved preexisting congenital and degenerative conditions, as reflected in her radiologist's MRI report (see Barreras v. Vargas, 151 A.D.3d 620, 620–621, 58 N.Y.S.3d 31 [1st Dept. 2017] ).  Plaintiff failed to raise an issue of fact.  Her physician provided only a conclusory opinion that her right shoulder injuries were caused by the accident, without addressing the preexisting degenerative conditions documented in her own MRI, or explaining why her current reported symptoms were not related to the preexisting conditions (see Lee v. Lippman, 136 A.D.3d 411, 412, 24 N.Y.S.3d 277 [1st Dept. 2016];  Alvarez v. NYLL Mgt. Ltd., 120 A.D.3d 1043, 1044, 993 N.Y.S.2d 1 [1st Dept. 2014], affd 24 N.Y.3d 1191, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2015] ).

The 90/180 day claim is reinstated inasmuch as there was no motion to dismiss it.