Ramirez v. L-T. & L. Enter., Inc.

189 A.D.3d 1636

139 N.Y.S.3d 321

Jason E. RAMIREZ, appellant,

v.L–T. & L. ENTERPRISE, INC., et al., respondents.

2018–00450

Index No. 501124/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 2, 2020

December 30, 2020

Levy and Levy, New York, N.Y. (Susan J. Levy and Judith Levy of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Robert D. Grace of counsel), for respondents.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Paul Wooten, J.), dated October 10, 2017. The order granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and denied, as untimely, the plaintiff's cross motion for summary judgment on the issue of liability.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with costs to the plaintiff.

On October 10, 2012, the plaintiff, Jason E. Ramirez, and the defendant Joseph V. Losinno were involved in a motor vehicle collision at 14th Street and 3rd Avenue, in Manhattan. Losinno's vehicle was owned by the defendant L–T & L. Enterprise, Inc. On February 10, 2014, the plaintiff commenced this action to recover damages for his injuries. In his bill of particulars, the plaintiff alleged, inter alia, injuries to the cervical region of his spine, and to his left shoulder.

On September 28, 2016, the defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102(d) as a result of the accident. In support, they submitted the affirmed report of an orthopedic surgeon who examined the plaintiff almost three years after the accident. The orthopedic surgeon measured the range of motion of the cervical region of the plaintiff's spine and the plaintiff's left shoulder, compared her results to what would be considered normal range of motion, and found the plaintiff's range of motion to be normal.

The defendants further submitted the affirmed reports of a radiologist, who reviewed post-accident MRI films of the cervical region of the plaintiff's spine and the plaintiff's left shoulder, and concluded that the plaintiff's injuries were caused by degeneration, and that there was no evidence of traumatic injury.

The plaintiff opposed the motion, and cross-moved for summary judgment on the issue of liability. The plaintiff submitted the affirmed report of a physician who examined the plaintiff about 14 months after the accident. The plaintiff's physician measured the plaintiff's range of motion and compared his results to what would be considered normal range of motion. He found restrictions of up to 33 percent in the cervical region of the plaintiff's spine, and of up to 27 percent in the plaintiff's left shoulder.

The plaintiff further submitted the report of a physician who examined the plaintiff on November 21, 2013, and again on March 10, 2016, and who reviewed the plaintiff's MRI films. The physician concluded that the injuries to the cervical region of the plaintiff's spine and the plaintiff's left shoulder were directly related to the accident.

In an order dated October 10, 2017, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury as a result of the accident. The court also determined that the plaintiff's cross motion was filed four months after the time in which to do so had expired, and denied the cross motion without reaching the merits. The plaintiff appeals.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a...