| Seecoomar v Ly |
| 2007 NY Slip Op 06660 [43 AD3d 900] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Neville Seecoomar, Appellant, v Checknan Ly,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Satterfield, J.), entered May 8, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that he did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) is denied.
On April 3, 2004 the plaintiff was involved in a car accident, allegedly sustaining a herniateddisc at L5-S1 and disc bulges at L1 through L4.
In support of its motion for summary judgment made in November 2005, the defendantsubmitted the affirmed report of a radiologist who disagreed with the findings in the originalreport of a magnetic resonance imaging examination (hereinafter MRI) of the plaintiff, whichstated that the plaintiff suffered a herniated disc at L5-S1 and disc bulges at L1 through L4.Rather, according to the defendant's radiologist, all that was visible on the MRI was a disc bulgeat L5-S1 and disc degeneration in the lumbar and thoracic spine. The defendant also submittedthe [*2]affirmed report of a neurologist quantifying the plaintiff'srange of motion in the cervical and lumbar spine as normal and stating that "[s]traight leg raisingwas normal bilaterally" without quantifying that range of motion.
In opposition, the plaintiff submitted an affidavit stating that prior to the accident he neverhad pain in his neck or back and had never been treated for any pain in the neck or back.Subsequent to the accident, the plaintiff immediately sought treatment and underwent activephysical therapy until September 2004 when there was "no improvement other than temporarysymptomatic relief." At the time the motion was made, the plaintiff was doing exercises at home,wore a back brace, and took prescription medication for pain in his neck and back. He wasunable to return to his job as a part-time real estate salesman because he could not sit at a desk orgo up and down stairs. An affirmation of a radiologist confirmed that an MRI of the plaintifftaken one month after the accident showed a disc herniation at L5-S1 and bulging discs at L1though L4.
The plaintiff also submitted the affirmation of his treating orthopedist whom he saw regularlyabout every eight months. The orthopedist noted that the plaintiff's MRI was reviewed andshowed a disc herniation at L5-S1 as well as disc degeneration. The disc herniation wasconsistent with traumatic injury. The orthopedist determined that the plaintiff's straight legraising was 20 to 25 degrees on the left side, in contrast to a normal range of 90 degrees, and theplaintiff "can ambulate with a stiff heel-toe gait." His finding of a limitation of range of motionof straight leg raising on the left side was confirmed in an examination conducted in December2005 while the motion for summary judgment was pending.
The orthopedist found that the plaintiff exhibited evidence of cervical myositis as well aslumbar radiculopathy. He stated that the plaintiff used a back brace to control his condition. Inthe opinion of the orthopedist, the plaintiff "suffered a permanent partial disability to his neckand low back" as a result of the accident. Additionally, the plaintiff's primary treating physiciancorroborated the orthopedist's findings.
The Supreme Court granted the defendant's motion for summary judgment, finding that inopposition to the defendant's prima facie showing of entitlement to judgment as a matter of law,the plaintiff failed to provide objective evidence of the extent or degree of limitations of range ofmotion and his submissions failed to "establish a continuous treatment plan" and was not basedupon a recent examination.
Contrary to the determination of the Supreme Court, the plaintiff submitted objectiveevidence of the extent of the alleged physical limitations resulting from the disc injury and itsduration, corroborated by a recent examination (see Cordero v Ford Credit Titling Trust Ins. Ctr., 39 AD3d 796[2007]; Hyun Jun Kim v Collazo,38 AD3d 842 [2007]; Santiago vRodriguez, 38 AD3d 639 [2007]; Lim v Tiburzi, 36 AD3d 671 [2007]; Collado v Pineda, 31 AD3d 684[2006]).
Further, there were no "gaps" in medical treatment (see Pommells v Perez, 4 NY3d 566, 574 [2005]) since the plaintiffregularly saw his orthopedist about every eight months and was taking prescription painmedication. The plaintiff explained that active physical therapy was discontinued after sixmonths on the ground that he experienced no further improvement (see Shpakovskaya v Etienne, 23 AD3d368 [2005]; Brown v Achy, 9AD3d 30 [2004]).
Accordingly, there are issues of fact which preclude the granting of summary [*3]judgment. Schmidt, J.P., Krausman, Goldstein, Covello andAngiolillo, JJ., concur.