Long v. Taida Orchids, Inc.
Court: Appellate Division of the Supreme Court of the State of New York; May 27, 2014; New York; State Appellate Court
The Supreme Court of New York County issued an order on September 24, 2013, granting defendants’ motion for summary judgment to dismiss the complaint based on the plaintiff's failure to demonstrate a serious injury as defined under Insurance Law § 5102(d). However, the court modified the ruling, denying the motion regarding the plaintiff's claims of “permanent consequential” and “significant” limitations of use of his cervical spine, while affirming the dismissal of other claims without costs. Defendants successfully established their initial burden, showing that the plaintiff did not sustain serious injuries from the accident, supported by an expert report indicating normal range of motion and no functional disability. In contrast, the plaintiff presented evidence raising a material fact issue concerning injuries to his cervical spine. This included an affirmed report from an orthopedist who noted cervical radiculopathy and range of motion limitations, as well as MRI results showing two herniations and mild degenerative changes. A chiropractor, Dr. Ilya Simakovsky, also reported significant limitations in range of motion two years post-accident and attributed the cervical herniations to trauma from the incident. The court found that the range-of-motion limitations identified were not minor and therefore raised factual issues warranting further consideration. The motion court had initially dismissed the chiropractor's report due to improper form; however, the defendants waived any objection regarding its admissibility by not challenging it on those grounds. The court may consider inadmissible evidence if it is not the sole basis for the opposition to summary judgment. Additionally, the plaintiff did not assert a 90/180-day claim in his complaint or verified bill of particulars, which the court noted should not be considered. Even if it were considered, the plaintiff failed to demonstrate that any medical provider had advised him against engaging in work or activities following the accident. The decision was concurred by Justices Sweeny, Acosta, Renwick, Andrias, and Freedman.