| Jules v Barbecho |
| 2008 NY Slip Op 07622 [55 AD3d 548] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Firma Jules, Respondent, v Miguel Barbecho,Appellant. |
—[*1] Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of theSupreme Court, Kings County (Ambrosio, J.), dated December 17, 2007, which denied his motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendant met his prima facie burden by showing that the plaintiff did not sustain a seriousinjury within 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 the plaintiff's lumbar spine, thesubmissions of Aric Hausknecht, the plaintiff's treating neurologist, and Eddy Rodriguez, one of theplaintiff's treating physicians, established significant lumbar spine range-of-motion limitations thereinwhich were based on objective range-of-motion tests done during both contemporaneous and recentexaminations. In his submissions, Hausknecht noted the findings contained in the affirmed magneticresonance imaging report of the plaintiff's lumbar spine which showed, inter alia, a disc bulge at L4-5and a disc herniation at L5-S1. Hausknecht further concluded in his submissions that [*2]the injuries to the plaintiff's lumbar spine were the result of the subjectaccident and amounted to a significant restriction of mobility of the plaintiff's lumbar spine. He furtherdeemed the injuries a permanent consequential limitation of use of her lumbar spine. The submissions ofHausknecht and Rodriguez were sufficient to raise at least a triable issue of fact as to whether theplaintiff sustained a serious injury under the significant limitation of use or the permanent consequentiallimitation of use category of Insurance Law § 5102 (d) to her lumbar spine as a result of thesubject accident (see Altreche v GilmarMasonry Corp., 49 AD3d 479 [2008]; Lim v Tiburzi, 36 AD3d 671 [2007]; Shpakovskaya v Etienne, 23 AD3d368 [2005]; Clervoix v Edwards,10 AD3d 626 [2004]; Acosta vRubin, 2 AD3d 657 [2003]; Rosado v Martinez, 289 AD2d 386 [2001]; Vitale vLev Express Cab Corp., 273 AD2d 225 [2000]; see also Djetoumani v Transit, Inc., 50 AD3d 944 [2008]).
The plaintiff adequately explained the significant gap in her treatment history by stating in heraffidavit that she stopped treatment about four to five months after the subject accident because herno-fault insurance was cut off and she could not afford to personally pay for further treatment (see Francovig v Senekis Cab Corp., 41AD3d 643 [2007]; Black v Robinson, 305 AD2d 438 [2003]). Skelos, J.P., Ritter,Dillon, Carni and Leventhal, JJ., concur.