Court: Supreme Court, Appellate Division, First Department, New York
Case: Sharon Gray Williams v. Karl W. Tatham
Date: Feb. 9, 2012
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)
ACCIDENT VICTIM LOSES NO-FAULT "SERIOUS INJURY" THRESHOLD MOTION BECAUSE HIS LAWYERS SUBMIT CHIROPRACTOR AFFIRMATION(Posted by Queens injury attorney Gary E. Rosenberg on Oct 18, 2011)
AUTO ACCIDENT VICTIM HAD PRE-EXISTING KNEE PROBLEM & DOESN'T PROVE NEW INJURY; SUMMARY JUDGMENT GRANTED TO DEFENSE ON NO-FAULT THRESHOLD(Posted by Queens injury attorney Gary E. Rosenberg on Nov 30, 2011)
Appeal from amended order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 19, 2010, which, to the extent appealed from as limited by the briefs, inter alia, granted defendants' motions for summary judgment dismissing the complaint, deemed an appeal from judgment, same court and Justice, entered November 22, 2010 (CPLR 5501[c]), dismissing the complaint, and, as so considered, unanimously reversed, on the law, without costs, and the complaint reinstated. Appeal from the order, same court and Justice, entered May 5, 2011, unanimously dismissed, without costs, as taken from a nonappealable paper, and to the extent it denied renewal, dismissed, without costs, as academic.
Defendants established their prima facie entitlement to judgment as a matter of law, as to both the permanent and nonpermanent categories of serious injury, by submitting evidence, in the form of an affirmed report from a radiologist, demonstrating that plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) since the MRI films revealed evidence of degeneration in plaintiff's back and right shoulder that preexisted the accident (see Linton v. Nawaz, 62 A.D.3d 434, 438, 879 N.Y.S.2d 82 , affd. 14 N.Y.3d 821, 900 N.Y.S.2d 239, 926 N.E.2d 593 ; Guadalupe v. Blondie Limo, Inc., 43 A.D.3d 669, 841 N.Y.S.2d 525 ; Shuji Yagi v. Corbin, 44 A.D.3d 440, 843 N.Y.S.2d 276 ; Thompson v. Abbasi, 15 A.D.3d 95, 96, 788 N.Y.S.2d 48 ).
In opposition, however, plaintiff submitted an affidavit from her treating chiropractor who medically examined her several times, employed objective range of motion testing, found restricted range of motion in plaintiff's lumbar and cervical spine, and thereafter concluded that "as a direct result of the accident [plaintiff] sustained permanent injury to her spine, muscular, and neurological systems." Accordingly, with respect to the permanent categories of serious injury alleged, plaintiff, by submitting expert opinion "attributing the injuries to a different, yet altogether equally plausible, cause, that is, the accident" (Linton at 439-440, 879 N.Y.S.2d 82; Yuen v. Arka Memory Cab Corp. 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 ), raised an issue of fact with respect to whether she sustained a serious injury thereby precluding summary judgment in defendants' favor (id.; Lavali v. Lavali, 89 A.D.3d 574, 575, 933 N.Y.S.2d 21  [expert opinion that plaintiff's injuries were degenerative in nature and thus unrelated to her accident sufficiently rebutted by opinion of plaintiff's expert, who upon a physical examination of the plaintiff opined that plaintiff's injuries were caused by the accident]).
Plaintiff also established that she sustained a medically determined injury, which prevented her from performing her usual and customary daily activities for not less than 90 days during the 180 days immediately following this accident. She thus raised an issue of fact precluding summary judgment with respect to this nonpermanent category of serious injury (Padilla v. Style Mgt. Co., Inc., 256 A.D.2d 27, 27, 681 N.Y.S.2d 20 ). Specifically, plaintiff's chiropractor stated that upon an examination performed two days after plaintiff's accident, he concluded that as a result of this accident plaintiff sustained an injury to her spine, and he therefore advised her to refrain from engaging in certain activities, such as cleaning, shopping, and walking. Moreover, plaintiff, by affidavit, stated, that subsequent to this accident she was confined to her home for approximately six months and was unable to clean, shop, or carry bags (cf. Mercado-Arif v. Garcia, 74 A.D.3d 446, 447, 902 N.Y.S.2d 72  ["chiropractor's statement that plaintiff was told to limit her physical activities for approximately four months was too general to constitute the requisite competent medical proof to substantiate the claim.").
To the extent that plaintiff seeks to appeal from the motion court's denial of her motion to reargue, that portion of her appeal is hereby dismissed because a denial of reargument is not appealable (see CPLR 5701[a] [viii]; Prime Income Asset Mgt., Inc. v. American Real Estate Holdings L.P., 82 A.D.3d 550, 551, 918 N.Y.S.2d 467 , lv. denied 17 N.Y.3d 705, 2011 WL 2535253 ). In view of our reversal of the motion court's determination as to summary judgment, plaintiff's appeal from the court's order, tacitly denying renewal is dismissed as academic.
We have considered plaintiff's remaining arguments and find them unavailing.