| Jackson v RM Limo Serv., Inc. |
| 2012 NY Slip Op 51681(U) [36 Misc 3d 151] |
| Decided on August 30, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, as limited by their briefs, appeal from that portion of an order of the Civil Court
of the City of New York, Bronx County (Fernando Tapia, J.), entered October 13, 2011, which
denied their motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Fernando Tapia, J.), entered October 13, 2011, affirmed, with $10 costs.
Defendants met their initial burden of showing that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law � 5102(d), by submitting affirmed reports of a neurologist and orthopedist who examined plaintiff and found no restriction of motion and no permanent injury to her neck, back or left knee. In addition, defendants' radiologist opined that MRI studies showed degenerative changes (see Singer v Gae Limo Corp., 91 AD3d 526 [2012]).
In opposition, plaintiff, who was 22 years old at the time of the underlying 2007 vehicular
accident, raised a triable issue with respect to whether she sustained a serious injury. Her
complaints of pain were substantiated by objective medical testing performed within weeks of
the accident, including MRI studies showing herniated and bulging discs, and nerve conduction
studies evidencing radiculopathy, which were consistent with the injuries diagnosed by plaintiff's
physicians (see Paulino v Rodriguez, 91 AD3d 559 [2012]). Plaintiff's symptoms are
alleged to have persisted years later, as evidenced by range of motion restrictions measured by a
treating physician in 2011. Although plaintiff's doctors did not expressly address defendants'
expert's opinion that the injuries were the result of preexisting degenerative changes complicated
by plaintiff's apparent obesity, plaintiff nonetheless raised a triable issue by submitting expert
opinion evidence relating the injuries to the accident (see Vaughan v Leon, 94 AD3d 646
[2012]; Williams v Perez, 92 AD3d 528 [2012]). Plaintiff also raised a triable issue with
respect to her 90/180-day claim by way of her affidavit stating that she was confined to her home
for six months, unable to seek employment, clean, shop or carry bags (see Williams v
Tatham, 92 AD3d 472 [2012]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 30, 2012