| Leon v Manhattan Beer Distrib. |
| 2006 NY Slip Op 50545(U) [11 Misc 3d 138(A)] |
| Decided on April 5, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendants appeal from so much of an order of the Civil Court, Bronx County (Sharon A.M. Aarons, J.), entered October 6, 2004, as denied their motion for summary judgment dismissing the complaint on the ground that plaintiffs did not sustain a "serious injury" as defined in Insurance Law §5102(d).
PER CURIAM:
Order (Sharon A.M. Aarons, J.), entered October 6, 2004, modified to grant defendants' summary judgment motion insofar as plaintiff Rodriguez's claim of serious injury is predicated upon the allegation that she lost her fetus as a result of the subject automobile accident, and as modified, affirmed, without costs.
Defendants met their initial burden on the summary judgment motion by presenting affirmed reports of doctors who examined plaintiffs and concluded that neither plaintiff sustained a serious injury in the 2000 motor vehicle accident. Defendants' proof included an affirmation from a board-certified gynecologist/obstetrician who, after reviewing plaintiff Rodriguez's medical records and her deposition testimony, opined that the accident did not proximately cause her miscarriage 25 days later.
While the "loss of a fetus" is a serious injury under Insurance Law §5102(d), plaintiff Rodriguez did not submit any expert testimony or other competent evidence to raise an issue of fact as to whether the accident proximately caused the miscarriage (see Alladkani v Daily News, L.P., 262 AD2d 511 [1999]).
However, Rodriguez's submissions were otherwise sufficient to raise an issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law 5102(d). Similarly, plaintiff Leon's submissions in opposition were sufficient to require a trial on the threshold [*2]serious injury issue. Both plaintiffs submitted the affirmations of their treating physicians quantifying persistent spinal range of motion restrictions as well as setting forth qualitative assessments of the restrictions ascribed to injuries sustained in the collision (see Toure v. Avis Rent A Car Systems, 98 NY2d 345 [2003]). These limitations were correlated with positive results of straight leg raising and nerve conduction tests, as well as MRI reports revealing herniated and bulging discs, all of which constituted objective evidence of serious injury (see Brooks v. Zises, 16 AD3d 221 [2005]; Brown v. Achy, 9 AD3d 30 [2004]).
This constitutes the decision and order of the court.
Decision Date: April 5, 2006