PORTILLO v. ISLAND MASTER LOCKSMITH INC (2018)

Order, Supreme Court, Bronx County (Donald Miles, J.), entered on or about June 9, 2017, which denied 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.

Plaintiff alleges that he was knocked off his bicycle by a van owned by defendant Island Master Locksmith and operated by defendant Mallon.

With respect to the permanent consequential limitation of use and significant limitation of use categories, defendants satisfied their prima facie burden of showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2003] ).

In opposition, plaintiff raised a triable issue of fact as to whether he sustained a serious injury to his right shoulder, cervical spine and lumbar spine (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011];  Alozie v. Tempesta & Son Co., Inc., 83 A.D.3d 535, 921 N.Y.S.2d 235 [1st Dept. 2011] ).  On the record before us, the affirmed report of plaintiff's treating physician was admissible concerning the injuries to the right shoulder, cervical spine and lumbar spine, even though relying in part on unsworn MRI and medical reports and records (see Jallow v. Siri, 133 A.D.3d 1391, 1392, 20 N.Y.S.3d 20 [1st Dept. 2015];  Byong Yol Yi v. Canela, 70 A.D.3d 584, 895 N.Y.S.2d 397 [1st Dept. 2010];  Rivera v. Super Star Leasing, Inc., 57 A.D.3d 288, 868 N.Y.S.2d 665 [1st Dept. 2008] ).  Plaintiff's treating physician sufficiently addressed defendants' experts' findings of degeneration by opining that the injuries to the otherwise asymptomatic plaintiff were consistent with and 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] ).

We have considered defendants' other arguments, including those related to the 90/180 category, and find them unavailing.