Peluso v. Janice Taxi Co.

77 A.D.3d 491, 909 N.Y.S.2d 699

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 2010
• Status: Published

Opinions

Order, Supreme Court, New York County (Paul Wooten, J.), entered September 28, 2009, which denied defendants-appellants’ motion for summary judgment dismissing the complaint for lack of a serious injury, affirmed, without costs.

On the issue of causation, plaintiffs expert’s conclusion that plaintiff sustained injuries as a result of the accident is based on a physical examination of plaintiff just days after the accident and is sufficient to rebut defendants’ evidence that the disc bulging revealed on an MRI taken some six weeks after the accident was the result of a preexisting degenerative condition (see Linton v Nawaz, 62 AD3d 434 [2009], affd on other grounds 14 NY3d 821 [2010]). On the issue of seriousness, plaintiffs expert’s conclusion that plaintiff has sustained permanent, significant losses and limitations to her spine is supported by objective evidence, in particular, MRIs revealing injuries to her spine that he qualitatively relates to plaintiffs losses and limitations (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]). The motion court properly considered these unsworn MRI reports as they were incorporated into the expert’s sworn report (see Thompson v Abbasi, 15 AD3d 95, 97 [2005]). Plaintiff adequately explains the gap in treatment by offering proof of the termination of her insurance benefits, and her own statement that she could not continue physical therapy out of pocket (see Wadford v Gruz, 35 AD3d 258, 258-259 [2006]). We have considered and rejected defendants’ other arguments. Concur— Moskowitz, Freedman and Manzanet-Daniels, JJ.