| Ortiz v Zorbas |
| 2009 NY Slip Op 03882 [62 AD3d 770] |
| May 12, 2009 |
| Appellate Division, Second Department |
| Luz Ortiz, Appellant, v Konstantios P. Zorbas et al.,Respondents, et al., Defendant. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Weiss, J.), dated April 14, 2008, which granted the motionof the defendants Konstantios P. Zorbas, Boulevard Taxi Leasing, Inc., and Haitham S. Tawfikfor summary judgment dismissing the complaint insofar as asserted against them on the groundthat she did not 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 motion of the defendantsKonstantios P. Zorbas, Boulevard Taxi Leasing, Inc., and Haitham S. Tawfik for summaryjudgment dismissing the complaint insofar as asserted against them on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) isdenied.
The defendants Konstantios P. Zorbas, Boulevard Taxi Leasing, Inc., and Haitham S. Tawfikmet their prima facie burden of showing that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Tourev 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.
Dr. David Zelefsky, the plaintiff's treating physician, opined in an affirmation, based on hiscontemporaneous and most recent examinations of the plaintiff, that the plaintiff's cervicalinjuries and observed range-of-motion limitations were significant and permanent, and causallyrelated to the subject accident. Thus, the plaintiff raised a triable issue of fact as to whether shesustained a [*2]permanent consequential limitation of use and/ora significant limitation of use of her cervical spine as a result of the subject accident (see Azor v Torado, 59 AD3d 367[2009]; 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]). The plaintiff adequately explained the lengthy gap in hertreatment (see Jules v Barbecho, 55AD3d 548 [2008]; Black v Robinson, 305 AD2d 438 [2003]; see also Pommells v Perez, 4 NY3d566, 574 [2005]). Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.