| Nigro v Kovac |
| 2007 NY Slip Op 08424 [45 AD3d 547] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Susanne Nigro, Appellant, v Barbara L. Kovac,Respondent. |
—[*1] Schondebare & Korcz, Ronkonkoma, N.Y. (Amy B. Korcz of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Weber, J.), dated November 14, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment is denied.
The defendant met her prima facie burden by establishing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955 [1992]; see alsoMeyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]). Contrary to the SupremeCourt's determination, in opposition the plaintiff raised a triable issue of fact as to whether shesustained either a permanent consequential or significant limitation of use of her cervical spine asa result of the subject accident. The plaintiff's treating chiropractor opined in her affidavit, basedon her contemporaneous and most recent examinations of the plaintiff, as well as upon herreview of the plaintiff's cervical magnetic resonance imaging report, which showed, inter alia, aherniated disc at C5-6, that the plaintiff's cervical injuries and range of motion limitationsobserved were permanent [*2]and causally related to the subjectaccident, and not the result of any preexisting degenerative conditions (see Green v Nara Car & Limo, Inc., 42AD3d 430 [2007]; Lim v Tiburzi,36 AD3d 671, 672 [2007]; Shpakovskaya v Etienne, 23 AD3d 368, 369 [2005]; Clervoix v Edwards, 10 AD3d626, 627 [2004]; Acosta v Rubin,2 AD3d 657, 659 [2003]; Rosado v Martinez, 289 AD2d 386, 387 [2001];Vitale v Lev Express Cab Corp., 273 AD2d 225, 226 [2000]). Rivera, J.P., Krausman,Florio, Carni and Balkin, JJ., concur.