| Nisanov v Kiriyenko |
| 2009 NY Slip Op 07237 [66 AD3d 655] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Aleksandor Nisanov, Respondent, v Viktor V. Kiriyenko,Appellant. |
—[*1] Asher & Associates, P.C., New York, N.Y. (Robert J. Poblete of counsel), forrespondent.
In an action, inter alia, to recover damages for personal injuries, the defendant appeals froman order of the Supreme Court, Kings County (Starkey, J.), dated March 18, 2009, which deniedhis motion for summary judgment dismissing the complaint on the ground that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
In support of his motion, the defendant met his prima facie burden of showing that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)as a result of the subject accident (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 raiseda triable issue of fact through the affirmation of his treating physician Dr. Mikhail Bernshteyn asto whether he sustained a serious injury to the cervical and lumbar regions of his spine, under thesignificant limitation of use and/or permanent consequential limitation of use categories ofInsurance Law § 5102 (d) as a result of the subject accident (see Su Gil Yun v Barber, 63 AD3d1140 [2009]; Pearson vGuapisaca, 61 AD3d 833 [2009]; Williams v Clark, 54 AD3d 942 [2008]; Casey v Mas Transp., Inc., 48 AD3d610 [2008]; Acosta v Rubin, 2AD3d 657 [2003]). Dr. Bernshteyn stated that he had conducted both contemporaneous andrecent examinations of the plaintiff, which revealed significant limitations in both the plaintiff'scervical and lumbar regions, and that he had reviewed the plaintiff's MRI reports, which showed,inter alia, bulging discs at C5-6 and L5-S1. Dr. Bernshteyn concluded that the injuries to thecervical and lumbar regions of the plaintiff's spine, and range-of-motion limitations observedduring examinations, were permanent and causally related to the subject accident. Dr.Bernshteyn further concluded that the plaintiff's injuries amounted to a permanent consequentiallimitation of use of the cervical and lumbar regions of his spine and/or a significant limitation ofuse of the function of those regions.
Contrary to the defendant's assertions on appeal, the plaintiff adequately explained, in hisaffidavit, the reason for the gap in his treatment history between February 2, 2004, andNovember 6, 2008 (see Black v Robinson, 305 AD2d 438, 439-440 [2003]; see also Gaviria v Alvardo, 65 AD3d567 [2009]).[*2]
Accordingly, the Supreme Court properly denied thedefendant's motion for summary judgment dismissing the complaint. Fisher, J.P., Florio,Angiolillo, Eng and Roman, JJ., concur.