| Azor v Torado |
| 2009 NY Slip Op 00637 [59 AD3d 367] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Pierre Azor, Appellant, v Steven Torado et al.,Respondents. |
—[*1] Martin, Fallon & MullÉ, Huntington, N.Y. (Richard C. MullÉ of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Held, J.), dated April 10, 2008, which granted the defendants'motion for summary judgment dismissing the complaint on the ground that he did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The defendants met their 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, 352 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). However, contrary to the Supreme Court'sdetermination, the plaintiff's opposition was sufficient to raise a triable issue of fact as to whetherhe had sustained a serious injury. In addition to evidence of disc herniations and bulges causallyrelated to the accident, the plaintiff's treating physician stated that he had found that theplaintiff's cervical and lumbar ranges of motion were significantly restricted as quantified in hisaffirmation (see Paz v Wydrzynski,41 AD3d 453 [2007]). In addition, the plaintiff's physician adequately explained the gapin the plaintiff's treatment (seePommells v Perez, 4 NY3d 566, 577 [2005]). Fisher, J.P., Covello, Balkin and Belen,JJ., concur.