Zinnah v Isabella City Carting Corp.

Zinnah v Isabella City Carting Corp. 2012 NY Slip Op 02794 Decided on April 17, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 17, 2012
Andrias, J.P., Friedman, Moskowitz, Freedman, Manzanet-Daniels, JJ.
7381 304689/09

[*1]Mohammad Zinnah, Plaintiff-Respondent,

v

Isabella City Carting Corp., et al., Defendants-Appellants.




Reardon & Sclafani, P.C., Tarrytown (Michael V. Sclafani of
counsel), for appellants.
Mitchell Dranow, Sea Cliff, for respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered August 3, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Assuming that defendants met their burden, the record presents triable issues of fact as to whether the injuries plaintiff sustained to his lumbar spine and to his cervical spine were serious within the meaning of section 5102(d). Plaintiff submitted the affirmed MRI reports revealing multiple herniations, as well as the affirmation of a neurologist who found diminished range of motion in multiple planes, and attributed the subject accident as the cause. Plaintiff also submitted the affidavit of his chiropractor who noted diminished ranges of motion, addressed causation, and explicitly rejected degeneration as the cause of the spinal injuries (see Yuen v Arka Memory Cab Corp., 80 AD3d 481 [2011]). In view of the foregoing, it is unnecessary to address plaintiff's proof with respect to the injuries he sustained to his left knee (see Linton v Nawaz, 14 NY3d 821 [2010]).

Defendants failed to establish their entitlement to judgment as a matter of law as to the 90/180-day claim. Defendants failed to meet their burden as to causation, and none of their experts examined plaintiff during the relevant period of time (see Feaster v Boulabat, 77 AD3d [*2]440 [2010]; Alexandre v Dweck, 44 AD3d 597 [2007]).

We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 17, 2012

CLERK