| Domanas v Delgado Travel Agency, Inc. |
| 2008 NY Slip Op 09349 [56 AD3d 717] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Bognay Domanas, Respondent, v Delgado Travel Agency,Inc., et al., Appellants. |
—[*1] Tumelty & Spier, LLP (Michael J. Andrews, P.C., New York, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Taylor, J.), dated December 14, 2007, which, uponreargument, vacated an original determination in an order dated June 18, 2007, granting theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d), and thereupondenied their motion for summary judgment.
Ordered that the order is affirmed, with costs.
The plaintiff, a licensed physical therapist, allegedly was injured in a parking garage onJanuary 20, 2005, when the car he was operating was struck in the rear by a vehicle driven by thedefendant Mario A. Erazo and owned by the defendant Delgado Travel Agency, Inc. For a periodof approximately 3 months following the accident, the plaintiff was treated for injuries heallegedly sustained, but then he apparently stopped treatment for a period of approximately 19months. After the plaintiff commenced this action, discovery was conducted and the defendantsmoved for summary judgment dismissing the complaint. In granting the motion, the SupremeCourt found that the defendants established their prima facie entitlement to judgment as a matterof law and it also found, erroneously, that the plaintiff's expert proof had not been submitted inadmissible form. Upon [*2]reargument, the Supreme Courtvacated its original determination and denied the defendants' motion. We affirm.
The defendants made a prima facie showing that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeGaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Luckey v Bauch, 17 AD3d 411[2005]; Sims v Megaris, 15 AD3d 468 [2005]; Check v Gacevk, 14 AD3d 586[2005]). In opposition, however, the plaintiff raised a triable issue of fact by submitting, interalia, the affirmed reports of his examining physicians (see Altreche v Gilmar Masonry Corp.,49 AD3d 479 [2008]; Lim v Tiburzi, 36 AD3d 671, 672 [2007]; Clervoix vEdwards, 10 AD3d 626, 627 [2004]). Moreover, contrary to the defendants' contention, theplaintiff adequately explained the apparent 19-month gap in his medical treatment by histestimony that his no-fault benefits were cut off and he could no longer afford to pay fortreatment, but that colleagues at his place of employment had, as a professional courtesy,performed physical therapy on him and he had performed home therapy exercises on his own(see Jules v Barbecho, 55 AD3d 548 [2008]; Francovig v Senekis Cab Corp., 41AD3d 643, 644 [2007]; Williams v New York City Tr. Auth., 12 AD3d 365 [2004];Black v Robinson, 305 AD2d 438, 439-440 [2003]). Accordingly, upon reargument, theSupreme Court properly denied the defendant's motion for summary judgment dismissing thecomplaint. Fisher, J.P., Lifson, Covello, Balkin and Belen, JJ., concur.