MARCELO v. FABIUS (2021)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about September 14, 2020, which granted defendants’ motion for summary judgment dismissing the complaint based on plaintiff's inability to establish that she suffered a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to plaintiff's claims of serious injury involving significant or permanent consequential limitation of use of her lumbar spine, right shoulder, and right knee, and otherwise affirmed, without costs.

Defendants established prima facie that plaintiff did not sustain a serious injury to her lumbar spine, right shoulder, and right knee by submitting the report of their orthopedic surgeon, who found that plaintiff had normal range of motion and that her alleged injuries had resolved (see Reyes–Mendez v. City of New York, 192 A.D.3d 464, 465, 139 N.Y.S.3d 818 [1st Dept. 2021];  Grate v. Rodrigues, 179 A.D.3d 440, 441, 117 N.Y.S.3d 32 [1st Dept. 2020]).  Defendants also submitted the affirmed report of a radiologist, who opined that the MRI of plaintiff's lumbar spine revealed conditions that were degenerative and not causally related to the accident.  The orthopedic surgeon also opined that the MRI reports of plaintiff's lumbar spine, right shoulder, and right knee showed conditions consistent with degeneration, although he did not state why or address the findings in the reports of fluid consistent with a recent trauma.

In opposition, plaintiff raised an issue of fact as to whether her injuries were significant, permanent and causally related to the accident.  Contrary to defendants’ contention, plaintiff submitted a contemporaneous evaluation report that was affirmed by her physician the day after the accident, and which documented limitations in range of motion.  Plaintiff also submitted certified medical records, including MRI and operative reports, which may be considered for the purpose of demonstrating that she sought medical treatment for her claimed injuries contemporaneously with the accident (see Moreira v. Mahabir, 158 A.D.3d 518, 519, 71 N.Y.S.3d 38 [1st Dept. 2018];  Vishevnik v. Bouna, 147 A.D.3d 657, 659, 48 N.Y.S.3d 93 [1st Dept. 2017]).  Thus, to the extent contemporaneous proof of treatment is relevant to proof of causation (see Rosa v. Mejia, 95 A.D.3d 402, 943 N.Y.S.2d 470 [1st Dept. 2012]), plaintiff's showing was sufficient.  Plaintiff also provided the affirmed report of a physician who found continuing significant limitations in range of motion and opined that plaintiff's injuries were causally related to the accident which, given the lack of any evidence in plaintiff's own medical records of preexisting conditions or prior injuries, presented a “different, yet altogether plausible, cause of the injuries,” namely, the accident (Montoya v. Rosenberger, 176 A.D.3d 581, 582, 110 N.Y.S.3d 672 [1st Dept. 2019];  see Holloman v. American United Transp. Inc., 162 A.D.3d 423, 424, 75 N.Y.S.3d 26 [1st Dept. 2018]).

However, defendants are entitled to dismissal of the 90/180-day claim based on plaintiff's testimony that she was not confined to home or bed for any period of time following the accident (see Olivare v. Tomlin, 187 A.D.3d 642, 643, 131 N.Y.S.3d 159 [1st Dept. 2020]).