| Williams v Clark |
| 2008 NY Slip Op 07120 [54 AD3d 942] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Anthony G. Williams, Appellant, v Jason L. Clark et al.,Respondents. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and Francis J. Scahill of counsel),for respondents Jason L. Clark and Noel S. Harnden. Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Peter F. Breheny of counsel) forrespondents Rental Car Finance Corp. and Vanessa Guyce.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Balter, J.), dated February 28, 2007, which granted themotion of the defendants Rental Car Finance Corp. and Vanessa Guyce, and the separate motionof the defendants Jason L. Clark and Noel S. Harnden, for summary judgment dismissing thecomplaint insofar as asserted against them on the ground that he did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with one bill of costs, and the motions forsummary judgment dismissing the complaint are denied.
The defendants established their prima facie entitlement to judgment as a matter of lawthrough evidence demonstrating that the plaintiff, as a result of the subject motor vehicleaccident, did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)(see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79NY2d 955, 956-957 [1992]). In opposition, the plaintiff raised a triable issue of fact as towhether he sustained a permanent consequential limitation of use of his cervical and lumbar[*2]spines via the submission of his treating chiropractor'saffidavit (see Casey v Mas Transp.,Inc., 48 AD3d 610 [2008];Green v Nara Car & Limo, Inc., 42 AD3d 430 [2007]; Francovig v Senekis Cab Corp., 41AD3d 643, 644-645 [2007]; Acostav Rubin, 2 AD3d 657 [2003]). The plaintiff's treating chiropractor opined, based on hiscontemporaneous and most recent examinations of the plaintiff, as well as upon his review of theplaintiff's magnetic resonance imaging (hereinafter MRI) reports, which showed, inter alia,bulging discs, that the plaintiff's lumbar and cervical injuries and observed range-of-motionlimitations were permanent and causally related to the subject accident. Moreover, although theMRI reports were unaffirmed, the plaintiff properly relied on them in opposition to thedefendants' motions because the reports of the defendants' experts contain references to thoseMRI reports (see Zarate vMcDonald, 31 AD3d 632 [2006]; Silkowski v Alvarez, 19 AD3d 476 [2005]; Ayzen vMelendez, 299 AD2d 381 [2002]).
Contrary to the defendants' assertions, the affidavit of the plaintiff's treating chiropractoradequately explained any lengthy gap in the plaintiff's treatment history (see Pommells v Perez, 4 NY3d566, 574 [2005]; Paz vWydrzynski, 41 AD3d 453 [2007]).
The plaintiff's remaining contentions are without merit. Fisher, J.P., Balkin, McCarthy andChambers, JJ., concur.