| Bonilla v Tortoriello |
| 2009 NY Slip Op 03683 [62 AD3d 637] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Jose D. Bonilla et al., Appellants, v Danielle Tortoriello,Respondent. |
—[*1] Richard T. Lau & Associates, Jericho, N.Y. (Kathleen E. Fioretti of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from so much ofan order of the Supreme Court, Suffolk County (R. Doyle, J.), dated February 28, 2008, asgranted the defendant's motion for summary judgment dismissing the complaint on the groundthat none of them sustained a serious injury within the meaning of Insurance Law § 5102(d).
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's motion which was for summary judgment dismissing the complaintinsofar as asserted by the plaintiff Maria Angela Joya and substituting therefor a provisiondenying that branch of the defendant's motion; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
The Supreme Court properly determined that the defendant met her prima facie burden ofshowing that none of the plaintiffs sustained a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Inopposition, the plaintiffs failed to raise a triable issue of fact as to whether the plaintiffs Jose D.Bonilla and Maria C. Joya sustained serious injuries within the meaning of the no-fault statute.The plaintiffs principally relied upon the affirmations of their treating physician, Dr. JosephPerez; however neither Dr. Perez nor those plaintiffs provided an adequate explanation for thelengthy gaps in their treatment (seePommells v Perez, 4 NY3d 566 [2005]; see also McNeil v Dixon, 9 AD3d 481 [2004]; Sibrizzi v Davis, 7 AD3d 691[2004]).[*2]
As to the plaintiff Maria Angela Joya (hereinafter MariaAngela), the affirmation of Dr. Perez was sufficient to raise a triable issue of fact. Dr. Perezopined, based on his contemporaneous and most recent examinations of Maria Angela, as well asupon his review of her magnetic resonance imaging report, which showed, inter alia, bulgingdiscs at T1-2, T6-7 and T11-12, that Maria Angela's thoracic injuries and observed range ofmotion limitations were permanent and causally related to the subject accident. He also opinedthat Maria Angela sustained a significant limitation of use of her thoracic spine. This submissionwas sufficient to raise a triable issue of fact as to whether, as a result of the subject accident,Maria Angela sustained a serious injury to her thoracic spine under the significant limitation ofuse or the permanent consequential limitation of use categories of Insurance Law § 5102(d) (see Williams v Clark, 54 AD3d942 [2008]; Casey v Mas Transp.,Inc., 48 AD3d 610 [2008]; Green v Nara Car & Limo, Inc., 42 AD3d 430 [2007]; Francovig v Senekis Cab Corp., 41AD3d 643, 644-645 [2007]; Acostav Rubin, 2 AD3d 657 [2003]).
Contrary to the determination of the Supreme Court, Maria Angela provided an adequateexplanation for the lengthy gap in her treatment history. Dr. Perez stated in his affirmation that inearly June 2005 he concluded that she had reached her maximum medical improvement andadvised her that any further treatment at that time would have been merely palliative in nature(see Pommells v Perez, 4 NY3d at 577; see also Shtesl v Kokoros, 56 AD3d 544, 546-547 [2008]). Mastro,J.P., Fisher, Miller, Dickerson and Chambers, JJ., concur.