Regino v Pichardo

[*1] Regino v Pichardo 2009 NY Slip Op 51789(U) [24 Misc 3d 144(A)] Decided on August 18, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 18, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570189/09.

Juan Regino, Plaintiff, and

against

Francisco Pichardo, Plaintiffs-Respondents, Amelia Mustafa, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell Danziger, J.), dated November 19, 2008, which denied her motion for summary judgment dismissing the complaint as against plaintiff Pichardo.

Per Curiam.

Order (Mitchell Danziger, J.), dated November 19, 2008, affirmed, with $10 costs.

While defendant satisfied her initial burden of presenting a prima facie case that plaintiff Pichardo did not sustain a serious injury (see Insurance Law § 5102[d]), plaintiff's submissions in opposition provided the requisite evidence of injury, and contemporaneous and recent quantified restrictions of motion compared to normal (see Prestol v McKissock, 50 AD3d 600 [2008]), sufficient to raise an issue of fact. Additionally, plaintiff's doctor opined that plaintiff's symptoms were caused by the motor vehicle accident which, in part, aggravated preexisting degenerative joint disease. This was sufficient to raise a triable issue as to causation (see Hammett v Diaz-Frias, 49 AD3d 285 [2008]). We note, however, that the record does not disclose the existence of a triable issue as to whether plaintiff sustained a non-permanent injury that prevented him from performing substantially all of his usual and customary daily activities for at least 90 of the 180 days immediately following the accident (see Gorden v Tibulcio, 50 AD3d 460 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: August 18, 2009