Escobar v. Guzman , 875 N.Y.S.2d 12 ( 2009 )

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about December 11, 2007, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants met their initial burden of establishing prima facie that plaintiffs alleged injuries did not satisfy the no-fault serious injury threshold (Insurance Law § 5102 [d]). Defendants’ expert concluded that plaintiff suffered from degenerative disc disease. This was based on his review of the MRI performed at the facility of plaintiffs expert, Dr. Roskin, on June 7, 2004. Although defendants failed to address the latter’s contemporaneous MRI examination report of herniated discs, a finding of degenerative disc disease is not inconsistent with the claimed herniations.

Plaintiff in opposition raised a triable issue of fact through the affirmed report of Dr. Augustyniak and the MRI report of Dr. Roskin (see Prestol v McKissock, 50 AD3d 600 [2008]). Similarly, the affirmed letters of Dr. Patel as to plaintiffs inability to resume work until September 2005 inraised a factual issue as to the 90/180 category. Concur—Tom, J.P., Saxe, Catterson, Moskowitz and DeGrasse, JJ.