| Casey v Mas Transp., Inc. |
| 2008 NY Slip Op 01488 [48 AD3d 610] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Maura Casey, Respondent, v Mas Transportation, Inc., etal., Appellants. |
—[*1] Gary P. Kauget, P.C., Brooklyn, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (F. Rivera, J.), dated May 18, 2007, which denied their motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants made a prima facie showing that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeToure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]). In opposition, the plaintiff raised a triable issue of fact as to whether shesustained a permanent consequential limitation of use of her lumbar spine via the submissions ofher treating physician (see Green v NaraCar & Limo, Inc. 42 AD3d 430 [2007]; Lim v Tiburzi, 36 AD3d 671 [2007]; Shpakovskaya v Etienne, 23 AD3d368 [2005]; Clervoix vEdwards, 10 AD3d 626 [2004]; Acosta v Rubin, 2 AD3d 657 [2003]; Rosado v Martinez,289 AD2d 386 [2001]; Vitale v Lev Express Cab Corp., 273 AD2d 225 [2000]). Theplaintiff's treating physician established, based on his contemporaneous and most recentexaminations of the plaintiff, as well as upon his review of the plaintiff's lumbar magneticresonance imaging report, which showed, inter alia, herniated discs, that the plaintiff's lumbarinjuries and observed range of motion limitations were permanent and causally related to thesubject accident. He concluded, in his most recent affirmed medical report, that the plaintiff'sinjuries amounted to a permanent consequential limitation of use of her [*2]lumbar spine. Contrary to the defendants' assertions, the affidavit ofthe plaintiff adequately explained any gap in her treatment history (see Black v Robinson,305 AD2d 438 [2003]). Rivera, J.P., Lifson, Ritter and Carni, JJ., concur.