Luis Hiraldo, Plaintiff, v. [And a Third Party Action].

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Ernesto AMARO, Plaintiff–Respondent, Luis Hiraldo, Plaintiff, v. AMERICAN MEDICAL RESPONSE OF NEW YORK, INC., et al., Defendants–Appellants, Laidlaw USA, Inc., Defendant. [And a Third Party Action].

Decided: October 16, 2012

TOM, J.P., MAZZARELLI, ANDRIAS, DeGRASSE, ROMÁN, JJ. Billig Law, P.C., New York (Darin S. Billig of counsel), for appellants.

Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered April 20, 2010, which, to the extent appealed from as limited by the brief, denied the motion of defendants American Medical Response of New York, Inc. and Moises Nunes for summary judgment dismissing plaintiff Ernesto Amaro's complaint based on the failure to establish a serious injury pursuant to Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants made a prima facie showing of entitlement to summary judgment as to plaintiff's claims of “significant limitation of use” and/or “permanent consequential limitation of use” of her cervical and lumbar spine injuries (see Insurance Law § 5102[d] ). They submitted expert medical reports of a radiologist who opined that changes shown in MRIs of the lumbar spine of the then 26–year–old plaintiff were degenerative, and that the MRI of the cervical spine showed no injury (see Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590–591, 920 N.Y.S.2d 24 [2011] ).

In opposition, plaintiff submitted the affirmations of his physician, who found limitations in the range of motion of plaintiff's cervical and lumbar spine shortly after the accident and five years later. Plaintiff also submitted the MRI reports of his radiologist noting disc bulges in the cervical spine and a herniated disc in the lumbar spine. This evidence raises triable issues of fact as to whether plaintiff sustained serious injuries of the cervical and lumbar spine (see Fuentes v. Sanchez, 91 A.D.3d 418, 936 N.Y.S.2d 151 [2012]; Johnson v. Garcia, 82 A.D.3d 561, 919 N.Y.S.2d 13 [2011] ). Plaintiff's physicians also addressed the defense expert's findings of degeneration by opining that his injuries were causally related to the accident (see Lee Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [2011]; Grant v. United Pavers Co., Inc., 91 A.D.3d 499, 937 N.Y.S.2d 20 [2012] ).

Plaintiff did not submit any proof of a recent medical examination showing a loss of range of motion in his right knee (see Townes v. Harlem Group, Inc., 82 A.D.3d 583, 920 N.Y.S.2d 21 [2011] ), or MRI evidence of his knee injuries. Nevertheless, once a serious injury is established, a plaintiff is entitled to recover damages for all injuries causally related to the accident, even those that do not meet the serious injury threshold (see Linton v. Nawaz, 14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010]; Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 898 N.Y.S.2d 110 [2010] ).

Defendants have not met their burden with respect to plaintiff's 90/180–day claim, since they first raised this claim in their reply papers (see Tadesse v. Degnich, 81 A.D.3d 570, 917 N.Y.S.2d 569 [2011]; McNair v. Lee, 24 A.D.3d 159, 160, 805 N.Y.S.2d 67 [2005] ). Were we to address this claim, we would find it to be without merit (see Singer v. Gae Limo Corp., 91 A.D.3d 526, 937 N.Y.S.2d 39 [2012] ).