DeSantis v Zupis Taxi Inc.

[*1] DeSantis v Zupis Taxi Inc. 2007 NY Slip Op 50067(U) [14 Misc 3d 131(A)] Decided on January 17, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 17, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, SCHOENFELD, JJ
570453/06.

Raffaele DeSantis, Plaintiff-Respondent,

against

Zupis Taxi Inc. and Anthony Speer, Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered May 16, 2006, which denied their motion for summary judgment dismissing the complaint.

PER CURIAM:

Order (Raul Cruz, J.), entered May 31, 2006, affirmed, with $10 costs.
Defendants failed to satisfy their prima facie burden of demonstrating that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d). The affirmation of defendants' neurologist does not address plaintiff's claimed shoulder injury. Nor was the affirmation probative on plaintiff's 90/180-day claim since the neurologist did not examine plaintiff until more than three years after the accident. Moreover, plaintiff's deposition testimony, upon which defendants relied, detailed daily activities that were substantially hindered in the near aftermath of the accident by plaintiff's injuries (see Webb v. Johnson, 13 AD3d 54 [2004]; cf. Uddin v. Cooper, 32 AD3d 270 [2006]).

Even if defendants satisfied their initial burden, plaintiff's opposition papers raised a triable issue of fact sufficient to defeat summary judgment. Plaintiff's treating chiropractor quantified significant restrictions of motion at the time of the accident, which persisted upon re-examination four years later. The chiropractor attributed her findings to bulging disc and nerve injuries revealed on MRIs and other tests, and opined that they were permanent in nature and caused by the accident. Plaintiff adequately explained the cessation of medical treatment (see Pommells v. Perez, 4 NY3d 566 [2005]).
This constitutes the decision and order of the court.
Decision Date: January 17, 2007