Herrera v Dulisse

[*1] Herrera v Dulisse 2014 NY Slip Op 50680(U) Decided on April 29, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 29, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Lowe, III, Shulman, JJ
570124/14.

Magdalena Herrera, Plaintiff-Appellant, - -

against

John H. Dulisse, Defendant-Respondent, -and- ARI Fleet, Defendant.

Plaintiff, as limited by her briefs, appeals from those portions of an order of the Civil Court of the City of New York, Bronx County (Arthur F. Engoron, J.), dated June 11, 2010, which granted the motion of defendant John F. Dulisse for summary judgment dismissing plaintiff's claims under the permanent consequential limitation of use and significant limitation of use categories of serious injury.

Per Curiam.

Order (Arthur F. Engoron, J.), dated June 11, 2010, insofar as appealed from, reversed, with $10 costs, and plaintiff's threshold claims with respect to the "permanent consequential limitation of use" and "significant limitation of use" categories of serious injury reinstated.

Defendant Dulisse failed to establish his entitlement to judgment as a matter of law with respect to plaintiff's claims under the "permanent consequential limitation of use of a body organ or member" and "significant limitation of use of a body function or system" categories of serious injury under Insurance Law § 5102(d). Included in defendant's motion papers were plaintiff's medical records showing a bulging disc and a 20% loss of use of his cervical spine shortly after the vehicular accident, and continuing range of motion deficits three years later (see Pineda v Moore, 111 AD3d 577 [2013]; Angeles v American United Trans., Inc., 110 AD2d 639 [2013]). "Such medical evidence, which contradicts defendant's medical evidence, raises issues of fact as to the existence and causation of plaintiff's injuries" (Suazo v Brown, 88 AD3d 602 [2011]).

Furthermore, even assuming that defendant met his initial burden, plaintiff's submissions are sufficient to defeat the motion (see Pineda v Moore, 111 AD3d at 577). The affirmed report of plaintiff's examining neurologist "showing recent quantified range of motion limitations, positive tests, and permanency provided the requisite proof of limitations and duration of the . . . injuries" (Pietropinto v Benjamin, 104 AD3d 617, 617-618 [2013]). Nor, on this record, is it fatal to plaintiff's claims of permanency that the discharge report prepared by his treating [*2]orthopedist some two months post-accident indicated that plaintiff then felt "much better" and experienced "no pain," particularly since that same report included a diagnosis of "cervical radiculitis due to disc displacement" and a 20% "impairment" of plaintiff's cervical spine. "Injuries can become significantly more or less severe as time passes" (Perl v Meher, 18 NY3d 208, 218 [2011]; see Ferrara v Middleton, ___ AD3d ___, 2014 NY Slip Op 02223 [1st Dept 2014]). Moreover, the evidence that plaintiff ceased treatment when her no-fault benefits terminated constitutes at least "the bare minimum required to raise an issue regarding some reasonable explanation' for the cessation of physical therapy" (Ramkumar v Grand Style Transp. Enters. Inc., 22 NY3d 905, 907 [2013]).

Finally, we note that the motion court properly dismissed plaintiff's 90/180-day claim, which, in any event, plaintiff has abandoned on appeal (see McHale v Anthony, 41 AD3d 265, 266-267 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: April 29, 2014