Melo v Grullon

Melo v Grullon 2012 NY Slip Op 08432 Decided on December 6, 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 December 6, 2012
Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam, Feinman, JJ.
8753 309086/09

[*1]Pedro Melo, Plaintiff-Appellant,

v

Jose Grullon, Defendant-Respondent.




Frekhtman & Associates, Brooklyn (Andrew Green of
counsel), for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn
(Stacy R. Seldin of counsel), for respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered August 3, 2011, which granted defendants' motion for summary judgment dismissing the complaint on the threshold issue of serious injury under Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to the claims of serious injury resulting in "permanent consequential" or "significant" limitations and fracture, and otherwise affirmed, without costs.

Defendant established prima facie that plaintiff did not sustain a serious injury resulting in either a "permanent consequential" or a "significant" limitation of use of his lumbar spine by submitting an affirmation by a neurologist who examined plaintiff and found a full range of motion of the lumbar spine,
and diagnosed him with a resolved lumbar sprain/strain (see Baez v Boyd, 90 AD3d 524 [1st Dept 2011]).

In opposition, plaintiff raised an issue of fact by submitting an MRI report by his radiologist, who found a disc herniation at L4-5; a report by a physician who opined that a subsequent MRI of the lumbar spine revealed an acute compression fracture of the endplate at L-3 and disc herniations at L4-5 and other levels; his chiropractor's affidavit showing range of motion limitations contemporaneous with the accident; and affirmations by three physicians who found continuing limitations and opined that these limitations were permanent and that the lumbar injuries were directly caused by the accident (see Thompkins v Ortiz, 95 AD3d 418 [1st Dept 2012]). This record does not support plaintiff's contention that he suffered a permanent loss of use of his lumbar spine (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]).

Defendant established prima facie that plaintiff did not sustain a 90/180-day injury by [*2]submitting plaintiff's bill of particulars and deposition testimony acknowledging that he was confined to bed and home for only a week; in opposition, plaintiff failed to raise an issue of fact (see Hospedales v "John Doe," 79 AD3d 536 [1st Dept 2010]).

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

ENTERED: DECEMBER 6, 2012

CLERK