| Dong Soo Kim v Kottler |
| 2009 NY Slip Op 00334 [58 AD3d 670] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Dong Soo Kim, Appellant, v Sheryl L. Kottler,Respondent. |
—[*1] John P. Humphreys, Melville, N.Y. (Dominic P. Zafonte of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Mahon, J.), entered November 26, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that he didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment is denied.
The defendant met her 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 v Eyler,79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff raised a triable issue of fact as towhether he sustained serious injuries to his cervical and/or lumbar spine under the permanentconsequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Williams v Clark, 54 AD3d 942 [2008]; Casey v Mas Transp., Inc., 48 AD3d610 [2008]; Green v Nara Car &Limo, Inc., 42 AD3d 430 [2007]). The plaintiff's treating physician Dr. Jae O. Parkopined, based on his contemporaneous and more recent examinations of the plaintiff, as well asupon his review of the plaintiff's magnetic resonance imaging reports, which showed, inter alia,disc bulges in the cervical and lumbar spine as well as a disc herniation in the lumbar spine, thatthe plaintiff's lumbar and cervical injuries and observed range of motion limitations werepermanent, and causally related to the subject accident. [*2]Hefurther concluded that the injuries amounted to a permanent consequential limitation of use ofthe cervical and lumbar spine as well as a significant limitation of use of those regions.
Contrary to the defendant's assertions, the plaintiff's affidavit adequately explained anylengthy gap in his treatment history (see Black v Robinson, 305 AD2d 438 [2003]).Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ., concur.