Hernandez v. MarcanoHernandez v. Marcano
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf LLP, Brooklyn (Thomas Torto of counsel), for Trevor Marcano and Crescent Cab Corp., respondents.
Richard T. Lau & Associates, Jericho (Kathleen E. Fioretti of counsel), for Daniel Alvarado and Michael Cook, respondents.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about June 23, 2017, which denied plaintiff‘s motion to renew defendants’ motions for summary judgment dismissing the complaint as against them for lack of serious injury under
The court improvidently exercised its discretion in denying plaintiff‘s motion to renew, which sought to submit an affirmation by her treating physician that, although referred to in her opposition papers, had been inadvertently omitted from the set of papers filed in court (see
Defendants established prima facie that plaintiff did not suffer serious injury to her cervical or lumbar spine through the affirmed reports of their medical experts, who found normal ranges of motion and no objective evidence of injury in the subject body parts (see Reyes v Se Park, 127 AD3d 459 [1st Dept 2015]; Rickert v Diaz, 112 AD3d 451 [1st Dept 2013]; Paduani v Rodriguez, 101 AD3d 470 [1st Dept 2012]). Defendants did not have to address plaintiff‘s claim of serious injury to her left shoulder, because that injury was not pleaded in the bill of particulars and was raised for the first time in opposition to their motion (see Santos v Traylor-Pagan, 152 AD3d 406 [1st Dept 2017]; Boone v Elizabeth Taxi, Inc., 120 AD3d 1143 [1st Dept 2014]). However, in any event, defendants Marcano and Crescent Cab Corp.‘s expert found full range of motion and absence of injury to the left shoulder, and defendants Alvarado and Cook submitted plaintiff‘s hospital records showing that plaintiff sought no treatment for her shoulder after the accident, indicating that any shoulder condition was not causally related to the accident (see Lee v Rodriguez, 150 AD3d 481 [1st Dept 2017]).
In opposition, plaintiff raised an issue of fact as to her cervical and lumbar spine through her physician‘s affirmed report, which found continuing range of motion limitations, positive results on objective tests for cervical and lumbar injury, and causally related these injuries to the accident (Moreira v Mahabir, 158 AD3d 518, 518-519 [1st Dept 2018]; Encarnacion v Castillo, 146 AD3d 600 [1st Dept 2017]; Santana v Tic-Tak Limo Corp., 106 AD3d 572 [1st Dept 2013]). Plaintiff also submitted affirmed reports of MRIs of her spine performed shortly after the accident.
To the extent plaintiff asserts a left shoulder injury, as noted, it was not pleaded in her bill of particulars, and, in any event, she submitted no evidence of contemporaneous treatment of the shoulder in the period following the accident, indicating a lack of any causal connection (see Rosa v Mejia, 95 AD3d 402 [1st Dept 2012]).
Defendants satisfied their initial burden as to plaintiff‘s 90/180-day claim through plaintiff‘s own deposition testimony admitting that she was able to return to work during the first two to three weeks after the accident, and plaintiff failed to submit evidence in opposition sufficient to raise an issue of fact (see Komina v Gil, 107 AD3d 596, 597 [1st Dept 2013]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 29, 2018
CLERK