ROBINSON v. Adama Mbaye, et al., Defendants–Appellants.

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Della ROBINSON, Plaintiff–Respondent, v. Mary JOSEPH, et al., Defendants, Adama Mbaye, et al., Defendants–Appellants.

Decided: October 16, 2012

TOM, J.P., MAZZARELLI, ANDRIAS, DeGRASSE, ROMÁN, JJ. Law Offices of William B. Baier, Bohemia (William B. Baier of counsel), for appellants. Paris & Chaikin PLLC, New York (Ian M. Chaikin of counsel), for respondent.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about July 1, 2011, which denied defendants Adama Mbaye and Krukman, LLC's 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 affirmed, without costs.

Defendants met their prima facie burden of showing that plaintiff did not sustain a serious injury to her cervical spine and lumbar spine by submitting the affirmations of a physiatrist and neurologist, both of whom found that plaintiff's cervical spine and lumbar spine demonstrated full ranges of motion in every plane, comparing plaintiff's values to normal (see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011]; Vega v. MTA Bus Co., 96 A.D.3d 506, 507, 946 N.Y.S.2d 162 [1st Dept. 2012]; Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590–591, 920 N.Y.S.2d 24 [1st Dept. 2011] ). Contrary to plaintiff's contention, it was unnecessary, for defendants to meet their prima facie burden, for their experts to specifically address the positive diagnostic findings within plaintiff's medical records (see Clemmer v. Drah Cab Corp., 74 A.D.3d 660, 660–661, 905 N.Y.S.2d 31 [1st Dept. 2010]; Shumway v. Bungeroth, 58 A.D.3d 431, 870 N.Y.S.2d 27 [1st Dept. 2009]; Onishi v. N & B Taxi, Inc., 51 A.D.3d 594, 595, 858 N.Y.S.2d 171 [1st Dept. 2008] ).

Nevertheless, plaintiff raised an issue of fact in opposition as to both her cervical and lumbar spines. She submitted the affirmation of a radiologist explaining that the MRIs of her cervical spine revealed, among other things, disc herniations at multiple levels, and affirmed results of EMG tests which revealed lumbar and cervical radiculopathy. Further, plaintiff submitted the affirmed reports of three treating physicians, all of whom found that plaintiff's cervical and lumbar spine suffered diminished ranges of motion (see Lavali v. Lavali, 89 A.D.3d 574, 933 N.Y.S.2d 21 [1st Dept. 2011]; Colon v. Bernabe, 65 A.D.3d 969, 970, 886 N.Y.S.2d 376 [1st Dept. 2009] ). Moreover, plaintiff's physical medicine and rehabilitation expert stated in his affirmation that the disc herniations and radiculopathies were causally connected to the accident (see e.g. Fuentes v. Sanchez, 91 A.D.3d 418, 936 N.Y.S.2d 151 [2012] ).

Defendants failed to meet their initial burden as to plaintiff's 90/180–day claim, since they relied only on the reports of their medical experts who did not examine plaintiff during the relevant statutory period and did not address plaintiff's condition during the relevant period (see Quinones v. Ksieniewicz, 80 A.D.3d 506, 506–507, 915 N.Y.S.2d 70 [1st Dept. 2011] ). Viewing the evidence in a light most favorable to plaintiff, as we must at this procedural posture, Supreme Court properly denied defendants' motion as to the 90/180–day claim (see Cruz v. Rivera, 94 A.D.3d 576, 942 N.Y.S.2d 91 [1st Dept. 2012]; Morris v. Cisse, 58 A.D.3d 455, 456, 871 N.Y.S.2d 113 [1st Dept. 2009]; Alexandre v. Dweck, 44 A.D.3d 597, 848 N.Y.S.2d 181 [2nd Dept. 2007] ).