Vera v. Islam

70 A.D.3d 525, 895 N.Y.S.2d 73

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 2010
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered July 31, 2009, which denied defendants’ motions for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d), unanimously affirmed, without costs.

Assuming that defendants established their prima facie entitlement to summary judgment by showing that plaintiff did not suffer a serious injury (see e.g. Rossi v Alhassan, 48 AD3d 270 [2008]), plaintiff met his burden in opposition by submitting affirmed MRI reports of a radiologist and an affirmed report of his treating physician, which raised issues of fact as to whether he suffered serious injuries caused by the accident. The MRI reports provide objective evidence of disc herniations and bulges in the cervical and lumbar spine, and the physician asserted that he performed objective tests quantifying decreased ranges of motion in the cervical and lumbar spine, both shortly after the accident and three years later, and that the injuries and resulting limitations were caused by the accident (see Colon v Bernabe, 65 AD3d 969, 970 [2009]; Hernandez v Rodriguez, 63 AD3d 520 [2009]).

The conclusions of defendant’s radiologist that the observed disc changes in plaintiff, who was 30 years old at the time of the accident, were normal or unrelated to the accident were sufficiently rebutted by the plaintiffs radiologist (see Frias v James, 69 AD3d 466 [1st Dept 2010]; June v Akhtar, 62 AD3d 427, 428 [2009]). Concur—Friedman, J.P., Sweeny, Nardelli and Freedman, JJ.