Jackson v. RM Limo Service, Inc.
Cite as: Jackson v. RM Limo Service, Inc., 570075/12, NYLJ 1202580343230, at *1 (App. Tm., 1st, Decided August 30, 2012)
Before: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
Decided: August 30, 2012
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.
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 ).
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 ). 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 ; Williams
v Perez, 92 AD3d 528 ). 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 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.