| Kasel v Szczecina |
| 2008 NY Slip Op 04654 [51 AD3d 872] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Tammy J. Kasel, Appellant, v Jan Szczecina,Respondent. |
—[*1] Marvin Jay Berkeley, Uniondale, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order andjudgment (one paper) of the Supreme Court, Suffolk County (R. Doyle, J.), entered April 27,2007, which granted the defendant's motion for summary judgment dismissing the complaint onthe ground that she did not sustain a serious injury within the meaning of Insurance Law §5102 (d), and is in favor of the defendant and against her dismissing the complaint.
Ordered that the order and judgment is reversed, on the law, with costs, the defendant'smotion for summary judgment dismissing the complaint is denied, and the complaint isreinstated.
The defendant met his prima facie burden of showing 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 vEyler, 79 NY2d 955, 956-957 [1992]; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456 [2005]; Kearse v New York City Tr. Auth., 16AD3d 45, 49-50 [2005]). In opposition, the plaintiff raised a triable issue of fact as towhether she sustained a serious injury under the permanent, consequential, and/or significantlimitation of use categories of Insurance Law § 5102 (d) to the cervical and/or lumbarregions of her spine as a result of the subject accident. The opinion of the plaintiff's treatingchiropractor was based on his most recent examinations of the plaintiff as well as examinationswhich were contemporaneous with the subject accident. The treating chiropractor also based hisopinion on a review of, inter alia, the affirmed [*2]cervical andlumbar magnetic resonance imaging reports prepared by the plaintiff's treating radiologist, whichwere submitted by the defendant in support of the motion for summary judgment (see Casas v Montero, 48 AD3d728 [2008]; Zarate vMcDonald, 31 AD3d 632 [2006]; Ayzen v Melendez, 299 AD2d 381 [2002]).Among other things, the reports documented disc bulges at C4-5 and C5-6 and disc herniations atL4-5 and L5-S1. The plaintiff's treating chiropractor opined that the plaintiff's spinal injuries andrange of motion limitations observed were significant and permanent, were causally related to thesubject accident, and were not caused by degeneration (see Altreche v Gilmar Masonry Corp., 49 AD3d 479 [2008]; Clervoix v Edwards, 10 AD3d 626[2004]). Contrary to the defendant's contention on appeal, the plaintiff adequately explained thegap in her treatment between January 2005 and her most recent examination on June 30, 2006(see Gibson v Tordoya, 44 AD3d1000, 1001 [2007]; Francovig vSenekis Cab Corp., 41 AD3d 643, 644 [2007]; Black v Robinson, 305 AD2d438, 439-440 [2003]). Skelos, J.P., Santucci, Covello, McCarthy and Chambers, JJ., concur.