Bernardez v. Babou

Appellate Division of the Supreme Court of New York

Bernardez v. Babou

83 A.D.3d 499, 920 N.Y.S.2d 656

Appellate Division of the Supreme Court of the State of New York·Decided April 14, 2011·Published·Cited by 2 cases

Opinion

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about October 15, 2010, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to meet their prima facie burden with respect to plaintiffs claim of permanent consequential and significant limitations in use of the lumbar spine, since their orthopedist did not find full range of motion and noted objective signs of injury upon examination (see Feaster v Boulabat, 77 AD3d 440 [2010]). Although the medical expert characterized plaintiffs response as subjective, there was no finding that her limitations were self-imposed or deliberate (compare Mercado-Arif v Garcia, 74 AD3d 446 [2010]), and she apparently complied with all other tests. Defendants did not submit any medical opinion concerning the cause of the claimed lumbar spine injury. Thus, we do not examine plaintiffs submissions in opposition (Offman v Singh, 27 AD3d 284, 285 [2006]).

Defendants also failed to meet their burden on the 90/180-day claim. Concur—Mazzarelli, J.P., Friedman, Acosta, DeGrasse and Román, JJ.

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Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about October 15, 2010, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to meet their prima facie burden with respect to plaintiffs claim of permanent consequential and significant limitations in use of the lumbar spine, since their orthopedist did not find full range of motion and noted objective signs of injury upon examination (see Feaster v Boulabat, 77 AD3d 440 [2010]). Although the medical expert characterized plaintiffs response as subjective, there was no finding that her limitations were self-imposed or deliberate (compare Mercado-Arif v Garcia, 74 AD3d 446 [2010]), and she apparently complied with all other tests. Defendants did not submit any medical opinion concerning the cause of the claimed lumbar spine injury. Thus, we do not examine plaintiffs submissions in opposition (Offman v Singh, 27 AD3d 284, 285 [2006]).

Defendants also failed to meet their burden on the 90/180-day claim. Concur—Mazzarelli, J.P., Friedman, Acosta, DeGrasse and Román, JJ.

Bernardez v. Babou, 83 A.D.3d 499, 920 N.Y.S.2d 656 (N.Y. Ct. App. 2011).

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Opinion

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