WILLIAMS v. Jorge Gerena, Defendant–Respondent. (2026)

Order, Supreme Court, Bronx County (John A. Howard Algarin, J.), entered December 10, 2024, which, to the extent appealed from as limited by the briefs, denied so much of defendants Ibou Kane Dia's and Jorge Gerena's separate motions as sought summary judgment dismissing plaintiff's claims of permanent consequential limitation of use and significant limitation of use under Insurance Law § 5102(d), granted plaintiff's cross-motion for partial summary judgment to the extent of, in effect, awarding her summary judgment on the issue of liability as against Dia on the ground that she bore no liability for the underlying motor vehicle collision, and dismissed the complaint in its entirety as against Gerena, unanimously modified, on the law, to reinstate the complaint as against Gerena, and otherwise affirmed, without costs.

Initially, as to plaintiff's claims of permanent consequential limitation and significant limitation of use, defendants failed to establish prima facie the absence of objective medical evidence of injuries or abnormalities.  The affirmed report of defendants' expert orthopedic surgeon was not sufficient to sustain defendants' prima facie burden, given that the expert, among other things, did not perform a “comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part” (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 353 [2002];  quoting Dufel v Green, 84 NY2d 795, 798 [1995] ).

Nevertheless, defendants sustained their prima facie burden on causation through the affirmed reports of their expert radiologist, who reviewed the MRIs of plaintiff's affected body parts and opined that her claimed injuries resulted not from the motor vehicle collision, but rather from preexisting chronic or degenerative conditions (see e.g. Kemegue v Rosario–Ramirez, 250 AD3d 565, 566 [1st Dept 2026] ).  The burden therefore shifted to plaintiff to raise an issue of fact as to causation.

In opposition, plaintiff raised issues of fact on causation through her expert physiatrist's report attributing her injuries the collision rather than to a degenerative condition (Linton v Nawaz, 62 AD3d 434, 440 [1st Dept 2009], affd 14 NY3d 821 [2010] ).  The expert's opinion was based not only on his recent examination of plaintiff, but also his review of her medical records in connection with both the collision underlying this appeal and a prior motor vehicle collision in 2006.  He reviewed MRIs taken of plaintiff's lumbar spine and right knee after both collisions and observed new conditions that were not reported in the prior studies as well as worsening of conditions that were reported.  Plaintiff's physiatrist also based his opinion on the fact that since 2008, plaintiff was asymptomatic and had not been treated in connection with the prior collision.  This opinion was sufficient to raise issues of fact on causation (see e.g. De Diaz v Klausner, 223 AD3d 461, 462 [1st Dept 2024];  Keri v Beye, 223 AD3d 432, 433 [1st Dept 2024] ).

Defendants have not preserved the issue of whether plaintiff had an unexplained gap in or cessation of treatment related to the collision, as they raised the issue for the first time in their reply brief (see e.g. Nwanji v City of New York, 190 AD3d 650, 651 [1st Dept 2021] ).

Supreme Court properly awarded summary judgment to plaintiff to the extent of finding that she did not engage in culpable conduct.  There is no dispute that plaintiff was a passenger in one of the vehicles involved in the collision and could not have been at fault under any version of the events underlying the collision (see Robinson v DeSouza, 250 AD3d 437, 438 [1st Dept 2026] ).

Supreme Court also properly awarded summary judgment to plaintiff on the issue of liability as against Dia. It is undisputed that no traffic control devices, such as a stop light or stop sign, controlled Gerena's direction of travel, while Dia's was controlled by a stop sign.  Thus, the record discloses two possible versions of the collision:  either Dia failed to stop at the stop sign (see Vehicle and Traffic Law § 1142[a] ), or he proceeded into the intersection when it was unsafe to do so and without yielding the right of way to Gerena (see Diaz v State of New York, 220 AD3d 480, 481 [1st Dept 2023] ).  Under either version of events, Dia was negligent as a matter of law (see Padilla v Biel, 143 AD3d 959 [2d Dept 2016] ).

This finding, however, has no bearing on the extent to which Gerena may have been comparatively at fault for the happening of the collision — for example, by speeding (see Rodriguez v City of New York, 31 NY3d 312 [2018] ).  For this reason, Supreme Court should not have dismissed the complaint as against Gerena.