Echevarria v. Ocasio , 24 N.Y.S.3d 272 ( 2016 )

Echevarria v Ocasio (2016 NY Slip Op 00605)

Echevarria v Ocasio

2016 NY Slip Op 00605

Decided on January 28, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 28, 2016
Tom, J.P., Sweeny, Gische, Kapnick, JJ.

65 303213/12

[*1]Regla Echevarria, Plaintiff-Appellant,

v

Amy Lee Ocasio, et al., Defendants-Respondents.

Mitchell Dranow, Sea Cliff, for appellant.

Richard T. Lau & Associates, Jericho (Marcella Gerbasi Crewe of counsel), for respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 28, 2014, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate that she suffered a serious injury to her cervical or lumbar spine within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motion as to plaintiff's claim that she suffered serious injuries involving significant limitations of use of the cervical and lumbar spine, and otherwise affirmed, without costs.

In opposition to defendants' prima facie showing of the lack of a serious injury (see Kone v Rodriguez, 107 AD3d 537, 538 [1st Dept 2013]), plaintiff failed to provide medical evidence reconciling the current findings of limitations in her spine's range of motion and the earlier findings of normal range of motion in the spine. Accordingly, the motion court correctly dismissed her claims of injuries involving "permanent consequential" limitations to the spine (Perdomo v City of New York, 129 AD3d 585, 586 [1st Dept 2015]; see Santos v Perez, 107 AD3d 572, 574 [1st Dept 2013]). However, plaintiff's medical evidence was sufficient to raise an issue of fact as to whether she suffered injuries involving significant limitation in use of her spine (see Sutliff v Qadar, 122 AD3d 452, 453 [1st Dept 2014]).

The motion court correctly dismissed plaintiff's 90/180-day claim, given her deposition [*2]testimony that she returned to work immediately after the accident, and was not confined to bed or home during the relevant period (see Mitrotti v Elia, 91 AD3d 449, 450 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 28, 2016

CLERK