STREETY v. TOURE (2019)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about July 3, 2018, which granted defendants' 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 deny the motion except as to the “90/180–day” claim, and otherwise affirmed, without costs.

The report of defendants' expert emergency medicine physician is sufficient to establish their prima facie burden on the issue of causation insofar as the physician opined that the record of plaintiff's examination in the emergency room showed findings inconsistent with his claimed injuries (see Hayes v. Gaceur, 162 A.D.3d 437, 79 N.Y.S.3d 119 [1st Dept. 2018]; Moore–Brown v. Sofi Hacking Corp., 151 A.D.3d 567, 567, 57 N.Y.S.3d 38 [1st Dept. 2017]; Frias v. Gonzalez–Vargas, 147 A.D.3d 500, 501, 47 N.Y.S.3d 30 [1st Dept. 2017]).

In opposition, plaintiff raised an issue of fact as to serious injury of a permanent nature through the submission of his pertinent medical records documenting complaints of pain and treatment to the affected body parts within days of the accident (see Perl v. Meher, 18 N.Y.3d 208, 217–218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011]) as well as the affirmed report of his treating orthopedic surgeon, who reviewed plaintiff's medical history, his own treatment of plaintiff, and plaintiff's MRIs, and who recounted his direct observations of plaintiff's injuries during surgery and opined that they were causally related to the accident (see Liz v. Munoz, 149 A.D.3d 646, 53 N.Y.S.3d 276 [1st Dept. 2017]; Hazel v. Colon, 136 A.D.3d 483, 24 N.Y.S.3d 307 [1st Dept. 2016]).

However, plaintiff's “90/180–day” claim was correctly dismissed in light of his deposition testimony that he was confined to home for only about three weeks (see e.g. Hayes v. Gaceur, 162 A.D.3d at 439, 79 N.Y.S.3d 119; 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]).