Duran v Jeong Hoy

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Duran v Jeong Hoy 2011 NY Slip Op 08213 Decided on November 15, 2011 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 November 15, 2011
Andrias, J.P., Friedman, DeGrasse, Freedman, Manzanet-Daniels, JJ.
6037 7152/06

[*1]Miguel Duran, Plaintiff-Respondent,

v

Jeong Hoy, Defendant-Appellant.




Kelly Rode & Kelly, LLP, Mineola (Susan M. Ulrich of
counsel), for appellant.
Mitchell Dranow, Sea Cliff, for respondent.

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered March 1, 2011, which denied defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the part of defendant's motion that seeks dismissal of plaintiff's 90/180-day claim, and otherwise affirmed, without costs.

Defendant made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. Defendant submitted affirmed reports of an orthopedist and neurologist reporting normal ranges of motion in all tested body areas, specifying the objective tests they used to arrive at the measurements, and
concluding that plaintiff's injuries were resolved (see De La Cruz v Hernandez, 84 AD3d 652 [2011]).

In opposition, plaintiff raised a triable issue of fact, except with respect to his 90/180-day claim. Plaintiff submitted the sworn report of his treating chiropractor who attested that he performed objective tests and found limitations in range of motion of the cervical spine both recently and shortly after the accident (see Dennis v New York City Tr. Auth., 84 AD3d 579 [2011]; Colon v Bernabe, 65 AD3d 969, 970 [2009]). The minor alterations in the report do not render it unreliable and may be explored by the parties at trial (cf. Braham v U-Haul Co., 195 AD2d 277 [1993]). Plaintiff also submitted an MRI report, which was affirmed by a radiologist, noting disc herniations in plaintiff's cervical spine, as well as the affirmed report of a neurologist who found range-of-motion limitations in plaintiff's cervical spine.

Plaintiff's 90/180-day claim should have been dismissed because he asserted in his deposition testimony and bill of particulars that he was confined to bed or home for only a few [*2]weeks after the accident (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522, 522-523 [2010]).

We have considered defendant's remaining arguments and find them unavailing.

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

ENTERED: NOVEMBER 15, 2011

CLERK

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