Palma v. Rosa

78 A.D.3d 461, 910 N.Y.S.2d 74

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2010
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered March 11, 2009, which granted defendant’s motion for summary judgment dismissing plaintiffs complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), unanimously modified, on the law, to deny so much of defendant’s motion as sought dismissal of plaintiffs 90/180-day claim, and otherwise affirmed, without costs.

On the issue of permanent injury, defendant’s submissions, which included the affirmations of his orthopedist and radiologist, met his prima facie burden (see Brown v Achy, 9 AD3d 30, [2004]), and the admissible evidence submitted by plaintiff in opposition to the motion (see Grasso v Angerami, 79 NY2d 813 [1991]) failed to raise an issue of fact. In particular, the findings contained in the August 2008 report and September 2008 affidavit of plaintiffs current chiropractor lack probative value as to any causal relationship between plaintiffs current complaints and the August 2003 accident (see Lopez v Abdul-Wahab, 67 AD3d 598, 599 [2009]; Kurin v Zyuz, 54 AD3d 902, 903 [2008]); in any event, the chiropractor’s diagnosis of residual cervical sprain with underlying herniated discs is, by itself, insufficient to support a claim of serious injury (see Kearse v New York City Tr. Auth., 16 AD3d 45, 51-52 [2005]); and the claim of permanent injury is further undermined by the chiropractor’s August 2008 “[g]ood” prognosis and findings that “there is currently no objective evidence of a disability” and that plaintiff “can continue to work.” We modify to reinstate plaintiffs 90/180-day claim because defendant’s moving papers do not address that claim (see Loesburg v Jovanovic, 264 AD2d 301 [1999]). Concur — Tom,. J.P., Saxe, Moskowitz, DeGrasse and AbdusSalaam, JJ.