Altreche v Gilmar Masonry Corp.

2008 NY Slip Op 01902 [49 AD3d 479]

March 4, 2008

Appellate Division, Second Department

As corrected through Wednesday, May 14, 2008

Alicia Altreche et al., Respondents, v Gilmar MasonryCorp. et al., Appellants.

—[*1]Marjorie E. Bornes, New York, N.Y., for appellants.

Neil Kalra, P.C., Forest Hills, N.Y. (William G. McCabe of counsel), forrespondents.

In an action, inter alia, to recover damages for personal injuries, the defendants appeal froman order of the Supreme Court, Kings County (Ruchelsman, J.), dated April 24, 2007, whichdenied their motion for summary judgment dismissing the complaint insofar as asserted by theplaintiff Alicia Altreche on the ground that she did not sustain a serious injury within themeaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendants met their prima facie burden of establishing that the plaintiff Alicia Altreche(hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98NY2d 345, 350-351 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Inopposition, the plaintiffs raised a triable issue of fact as to whether the plaintiff sustained aserious injury under the permanent loss and permanent consequential and/or significant limitationof use categories of Insurance Law § 5102 (d) to her cervical and/or lumbar spines as aresult of the subject accident. The opinion of the plaintiff's treating physician was based both onhis contemporaneous and his most recent examinations of the plaintiff, as well as upon hisreview of, inter alia, the plaintiff's cervical and lumbar magnetic resonance imaging reports,which showed, among other things, disc bulges at C2 through C5 and a disc herniation at L5-S1.He opined that the plaintiff's spinal injuries and range of motion limitations observed werepermanent, and were causally related to the subject accident (see Morales v Theagene, 46 AD3d 775 [2007]; Nigro v Kovac, 45 AD3d 547, 548[2007]; Green v Nara [*2]Car & Limo, Inc., 42 AD3d 430, 431 [2007]). Contrary tothe defendants' contention on appeal, the plaintiffs adequately explained the gap in the plaintiff'streatment (see Gibson v Tordoya, 44AD3d 1000, 1001 [2007]; Black v Robinson, 305 AD2d 438, 439-440 [2003]).Spolzino, J.P., Santucci, Dillon and Balkin, JJ., concur.