| Delorbe v Perez |
| 2009 NY Slip Op 01080 [59 AD3d 491] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Ramon Delorbe, Appellant, v Ramon E. Perez et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Saitta, J.), dated September 26, 2007, which granted thedefendants' 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 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 [2002]; Gaddy v Eyler,79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff raised a triable issue of fact. Theplaintiff's evidentiary submissions included contemporaneous and recent range of motion testingthat revealed the existence of significant limitations in his lumbar spine, and a magneticresonance imaging showing herniated discs at L3-4, L4-5, and L5-S1. The plaintiff's treatingphysician and neurologist concluded that the lumbar injuries and observed limitations werepermanent and causally related to the subject accident. The plaintiff's treating neurologist alsoconcluded that the plaintiff sustained permanent consequential limitation of use of hislumbosacral spine, as well as a significant limitation of function of his lumbosacral spine. Thesesubmissions raised a triable issue of fact as to whether the plaintiff sustained a serious injury tohis lumbar spine as a result of the subject accident under the [*2]permanent consequential limitation or the significant limitation ofuse categories of Insurance Law § 5102 (d) (see Prescott v Amadoujalloh, 55 AD3d 584 [2008]; Williams v Clark, 54 AD3d 942[2008]; Casey v Mas Transp., Inc.,48 AD3d 610 [2008]; Green vNara Car & Limo, Inc., 42 AD3d 430 [2007]).
The plaintiff also provided an adequate explanation for the gap in his treatment history. Theplaintiff stated in his affidavit that he obtained treatment for about six months after the accident,but stopped when his no-fault benefits were terminated because he could not afford to pay out ofpocket (see Black v Robinson, 305 AD2d 438 [2003]). The plaintiff's treating physician,in his affirmation, stated that the plaintiff's no-fault medical payments ended and, at that point,the plaintiff had reached his maximum medical improvement and any further treatment wouldhave been essentially palliative in nature (see Pommells v Perez, 4 NY3d 566, 574 [2005]). Spolzino, J.P.,Santucci, Miller, Dickerson and Eng, JJ., concur.