Rice v Abdoulahi Car Serv.

[*1] Rice v Abdoulahi Car Serv. 2012 NY Slip Op 52365(U) Decided on December 27, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 27, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570830/12.

Edward Rice, Plaintiff-Respondent, - -

against

Abdoulahi Car Service, Souleyane Kone, Defendants-Appellants, - and - American Transit Insurance Company, Defendant.

Defendants-appellants, as limited by their briefs, appeal from that portion of an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered October 31, 2011, which denied their motion for summary judgment dismissing the complaint insofar as it asserted claims under the "permanent consequential limitation of use" and "significant limitation of use" categories of serious injury.

Per Curiam.

Order (Ben R. Barbato, J.), entered October 31, 2011, affirmed, with $10 costs.

Defendants 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 cervical or lumbar spine by submitting expert medical reports of a neurologist and orthopedist who found normal ranges of motion, and of a radiologist who opined that MRIs of plaintiff's spine showed no injury (see Amaro v American Med. Response of NY, Inc., 99 AD3d 563 [2012]; Duran v Kabir, 93 AD3d 566 [2012]).

In opposition, plaintiff raised triable issues by submitting, inter alia, an affirmed report of his treating physician, who found limitations in spinal range of motion shortly after the underlying July 2005 vehicular accident and persisting six years later, and, while acknowledging plaintiff's involvement in prior accidents, opined that plaintiff's range of motion limitations were directly caused by the July 2005 accident (see Melo v Grullon, ___ AD3d ___, 2012 NY Slip Op 08432 [1st Dept 2012]).

In the absence of a cross appeal by plaintiff, the propriety of the court's dismissal of his 90/180-day serious injury claim is not properly before us.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 27, 2012