Suarez v Salas

[*1] Suarez v Salas 2014 NY Slip Op 50392(U) Decided on March 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
13-442/443.

Jose Suarez and Kooperling Matias, by his Grandmother and Natural Guardian Maria Nunez and Maria Nunez Individually, Plaintiffs-Respondents, - -

against

Victor Salas, Maximo T. Correa, and Elizabeth A. Matias, Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, Bronx County, (Raul Cruz, J.), entered December 28, 2012, which (1) denied their cross motions for summary judgment dismissing the complaint on the ground that plaintiffs did not sustain a "serious injury" (Insurance Law § 5102[d]), and (2) denied their cross motions to dismiss the complaint as a discovery sanction.

Per Curiam.

Order (Raul Cruz, J.), entered December 28, 2012, modified to dismiss the 90/180-day category of plaintiffs' Insurance Law § 5102(d) claims; as modified, order affirmed, without costs.

Defendants met their prima facie burden of showing that plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting, inter alia, the affirmed reports of medical experts who examined plaintiffs and determined that they had no residual disability from the underlying 2004 motor vehicle accident, and no deficits in range of motion in their lumbar or cervical spines (see Komina v Gil, 107 AD3d 596 [2013]; Gibbs v Ried, 94 AD3d 636 [2012]). The examining physicians were not required to review plaintiffs' medical records, since they detailed the specific tests performed and found full range of motion (see Abreu v NYLL Mgt. Ltd., 107 AD3d 512 [2013]; Levinson v Mollah, 105 AD3d 644 [2013]; Brand v Evangelista, 103 AD3d 539 [2013]).

In opposition, plaintiffs raised triable issues of fact as to their claimed injuries in their lumbar and cervical spines by submitting, inter alia, affirmed reports of their treating and examining physicians who found bulging and or herniated discs shortly after the accident, and [*2]continuing range of motion deficits of those body parts (see Perl v Meher, 18 NY3d 208 [2011]; Angeles v American United Transp., Inc., 110 AD3d 639 [2013]; Osborne v Diaz, 104 AD3d 486 [2013]; Pietropinto v Benjamin, 104 AD3d 617 [2013]).

However, plaintiffs' 90/180-day claims must be dismissed, in view of their failure to submit any competent evidence that their injuries prevented them from performing "substantially all" of their daily activities during the applicable time period (see Brand v Evangelista, 103 AD3d at 540; Simpson v Montag, 81 AD3d 547 [2011]).

We find no abuse of discretion in the denial of those branches of defendants' motions seeking to dismiss the complaint as a discovery sanction, since plaintiffs never had possession of the MRI films at issue, and cannot be presumed responsible for their loss (see Fotiou v Goodman, 74 AD3d 1140 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 19, 2014