Borchert & LaSpina, P.C., Whitestone (Gregory M. LaSpina of counsel), for appellant.
Burke, Conway, Loccisano & Dillon, White Plains (Sami P. Nasser of counsel), for respondents.
TOM, J.P., SWEENY, MOSKOWITZ, RICHTER, GESMER, JJ.
Opinion
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered April 2, 2015, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion with respect to plaintiff's claims of serious injury to his right knee and lumbar spine, and otherwise affirmed, without costs.
Defendants made a prima facie showing that plaintiff did not sustain a serious injury involving a permanent consequential or significant limitation in use of his spine or right knee by submitting the affirmed report of their orthopedic expert who, after examining plaintiff, found full range of motion, absence of functional limitations or neurological symptoms, and opined that the knee condition would not have been caused by the accident and that any knee or spinal injuries were fully resolved (see Adu v. Kirby, 132 A.D.3d 517, 517, 18 N.Y.S.3d 376 [1st Dept.2015] ; Perdomo v. City of New York, 129 A.D.3d 585, 585, 12 N.Y.S.3d 60 [1st Dept.2015] ; Malupa v. Oppong, 106 A.D.3d 538, 539, 966 N.Y.S.2d 9 [1st Dept.2013] ).
In opposition, plaintiff raised a triable issue of fact as to his right knee and lumbar spine injuries by submitting the affirmation of his treating physician, who found persisting limitations in range of motion, and affirmed MRI reports providing objective medical evidence of injury to the right knee and lumbar spine (see
Roldan v. Conti, 137 A.D.3d 507, 507–508, 26 N.Y.S.3d 472 [1st Dept.2016] ). Given that plaintiff was 20 years old and had no prior knee or back symptoms, his doctor's opinion that the injuries were directly caused by the accident was sufficient to raise an issue of fact as to causation (see Jallow v. Siri, 133 A.D.3d 1391, 20 N.Y.S.3d 20 [1st Dept.2015] ; Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [1st Dept.2011] ).
Plaintiff adequately addressed the gap in his treatment by submitting his deposition testimony and an affidavit in which he attested that he stopped treatment because he could not afford to pay for it after his no-fault benefits had expired, and later resumed treatment when a payment arrangement was
made with his doctor (see Ramkumar v. Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 976 N.Y.S.2d 1, 998 N.E.2d 801 [2013] ; Young Kyu Kim v. Gomez, 105 A.D.3d 415, 415, 962 N.Y.S.2d 127 [1st Dept.2013] ).
Plaintiff, however, did not submit objective medical evidence of injury to his cervical spine, or any evidence that any limitation in use of his cervical spine range of motion persisted (see Lee v. Lippman, 136 A.D.3d 411, 412, 24 N.Y.S.3d 277 [1st Dept.2016] ; Haniff v. Khan, 101 A.D.3d 643, 958 N.Y.S.2d 89 [1st Dept.2012] ). At trial, if plaintiff establishes a serious injury to his right knee and lumbar spine, he may recover for all injuries causally related to the accident, even those that do not meet the serious injury threshold (see Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549, 898 N.Y.S.2d 110 [1st Dept.2010] ).
Plaintiff's testimony that he missed only three or four days of work after the accident defeats his 90/180–day claim (see Streeter v. Stanley, 128 A.D.3d 477, 478, 10 N.Y.S.3d 11 [1st Dept.2015] ; Frias v. Son Tien Liu, 107 A.D.3d 589, 590, 967 N.Y.S.2d 382 [1st Dept.2013] ).