| Gibson v Tordoya |
| 2007 NY Slip Op 08185 [44 AD3d 1000] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Valeriya Gibson, Appellant, v John Tordoya et al.,Respondents. |
—[*1] White Fleischer & Fino, LLP, New York, N.Y. (Walter Williamson and Alisa Dultz ofcounsel), for respondent John Tordoya. Cheven, Keely & Hatzis, New York, N.Y. (Mayu Miyashita of counsel), for respondents OngTran Hue and Orlando Reyes.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Harkavy, J.), dated September 20, 2006, which granted themotion of the defendants Ong Tran Hue and Orlando Reyes, and the separate motion of thedefendant John Tordoya for summary judgment dismissing the complaint insofar as assertedagainst them on the ground that she did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs payable to the plaintiff by thedefendants appearing separately and filing separate briefs, and the respective motions of thedefendants for summary judgment dismissing the complaint insofar as asserted against them aredenied.
As conceded by the plaintiff, the defendants met their prima facie burdens of showing thatshe did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as aresult of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d [*2]955 [1992]). However, theplaintiff raised a triable issue of fact as to whether she sustained a permanent consequentiallimitation of use of her cervical and/or lumbar spine as a result of the subject accident. Theplaintiff's examining neurologist opined in his report, based on his proper review ofcontemporaneous range of motion tests and his recent examination of the plaintiff, as well asupon his review of the plaintiff's lumbar and cervical magnetic resonance imaging (hereinafterMRI) reports, which showed, inter alia, bulging discs at L5-S1 and C6-7, that the plaintiff'slumbar and cervical injuries and range of motion limitations observed were permanent andcausally related to the subject accident (see Green v Nara Car & Limo, Inc., 42AD3d 430 [2007]; Lim v Tiburzi, 36 AD3d 671 [2007]; Shpakovskaya v Etienne,23 AD3d 368 [2005]; Clervoix v Edwards, 10 AD3d 626 [2004]; Acosta vRubin, 2 AD3d 657 [2003]; Rosado v Martinez, 289 AD2d 386 [2001]; Vitale vLev Express Cab Corp., 273 AD2d 225 [2000]). The reliance by the plaintiff and her expertson the MRI reports was proper despite the fact that the reports submitted by the plaintiff wereunaffirmed, since the results of these reports were set forth in the report of the defendants'examining orthopedic surgeon (see Zarate v McDonald, 31 AD3d 632 [2006]; Ayzenv Melendez, 299 AD2d 381 [2002]). Contrary to the defendants' assertions, the plaintiffadequately explained the lengthy gap in her treatment (see Black v Robinson, 305 AD2d438 [2003]). Schmidt, J.P., Spolzino, Skelos, Lifson and McCarthy, JJ., concur.