| Wagenstein v Haoli |
| 2009 NY Slip Op 05768 [64 AD3d 584] |
| July 7, 2009 |
| Appellate Division, Second Department |
| Karyn Wagenstein, Respondent, v Mohammed Haoli et al.,Appellants. |
—[*1] Annette M. Scarano, New York, N.Y. (Pollack, Pollack, Isaac & De Cicco [Brian J. Isaacand Jillian Rosen], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Knipel, J.), dated October 22, 2008, which denied theirmotion for summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants met their prima facie burden of establishing that the plaintiff did not sustaina serious injury within the meaning of the Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff raised a triable issue offact as to whether she sustained a permanent consequential limitation of use and/or a significantlimitation of use of her cervical spine and/or right shoulder within the meaning 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]; Francovig v Senekis Cab Corp., 41 AD3d 643, 644-645 [2007]; Acosta v Rubin, 2 AD3d 657[2003]). Dr. Brian Mignola, one of the plaintiff's treating physicians, opined in his affirmation,based on his contemporaneous and most recent examinations of the plaintiff, as well as upon hisreview of the plaintiff's magnetic resonance imaging reports and films, which showed, inter alia,a bulging disc in the cervical spine, that the plaintiff's cervical and right shoulder injuries andobserved range of motion limitations were permanent, significant, and causally related to thesubject accident. Furthermore, Dr. Ludwig Liccairdi, the plaintiff's treating orthopedic surgeon,also established in his affirmation that during his examinations of the plaintiff in 2007 and 2008,she had significant limitations in her right shoulder and cervical spine, and he opined that herinjuries and limitations were caused by the subject accident, and were permanent and significantin nature. Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.