| Prescott v Amadoujalloh |
| 2008 NY Slip Op 07645 [55 AD3d 584] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Jude Prescott, Respondent, v Alpha Amadoujalloh et al.,Defendants, and Winston Christopher Ward, Appellant. |
—[*1] Alexander Bespechny, Brooklyn, N.Y. (Louis A. Badolato of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Winston Christopher Wardappeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County(Schmidt, J.), dated October 3, 2007, as denied his motion for summary judgment dismissing thecomplaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Winston Christopher Ward (hereinafter the appellant) met his prima facie burden onhis motion by showing that the plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys.,98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition to theappellant's prima facie showing, the plaintiff raised a triable issue of fact as to whether he sustained aserious injury to his cervical and/or lumbar spine under the significant limitation and/or permanentconsequential limitation of use categories of Insurance Law § 5102 (d). As part of his opposition,the plaintiff principally relied upon the affirmation of Dr. Soe [*2]Nyunt,his treating neurologist. Dr. Nyunt's affirmation revealed significant range-of-motion limitations in theplaintiff's lumbar and cervical spine based on objective range-of-motion testing which was based onboth contemporaneous and recent examinations. Moreover, in his affirmation, Dr. Nyunt properlynoted the findings contained in the plaintiff's magnetic resonance imaging report concerning the plaintiff'slumbar spine which revealed, inter alia, a disc herniation at L5-S1. Dr. Nyunt concluded, in hisaffirmation, that the injuries to the plaintiff's cervical and lumbar spine were the result of the subjectaccident and not degeneration, and amounted to a significant restriction of mobility of the plaintiff'sspine. Dr. Nyunt opined that the injuries to the plaintiff constituted a permanent consequential limitationof use of his spine. Dr. Nyunt's affirmation was sufficient to raise a triable issue of fact as to whether theplaintiff sustained a significant limitation of use and/or a permanent consequential limitation of use of hiscervical and/or lumbar spine as a result of the subject accident (see Altreche v Gilmar Masonry 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]).
The plaintiff, as well as Dr. Nyunt, adequately explained any significant gap in the plaintiff'streatment history (see Pommells v Perez,4 NY3d 566, 577 [2005]). Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ., concur.