| Casiano v Zedan |
| 2009 NY Slip Op 07371 [66 AD3d 730] |
| October 13, 2009 |
| Appellate Division, Second Department |
| Mariko Casiano, Respondent, v Gomma Said Zedan,Appellant. |
—[*1] Argyropoulos & Bender, Astoria, N.Y. (Susan E. Paulovich of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Martin, J.), dated December 17, 2008, which denied hismotion 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 defendant met his 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 vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff raised a triable issue offact through the affirmed medical reports of Dr. Aric Hausknecht, the plaintiff's treatingneurologist, as to whether she sustained a serious injury to her cervical spine under thesignificant limitation of use or permanent consequential limitation of use category of InsuranceLaw § 5102 (d) as a result of the subject accident (see Su Gil Yun v Barber, 63 AD3d 1140 [2009]; Pearson v Guapisaca, 61 AD3d833 [2009]; Williams v Clark,54 AD3d 942 [2008]; Casey v MasTransp., Inc., 48 AD3d 610 [2008]; Acosta v Rubin, 2 AD3d 657 [2003]; see also McNeil v New York City Tr.Auth., 60 AD3d 1018 [2009]). In these reports, Dr. Hausknecht noted that he hadconducted both contemporaneous and recent examinations of the plaintiff, which revealedsignificant limitations in the plaintiff's cervical spine. Dr. Hausknecht concluded in his mostrecent report, dated June 19, 2008, that the injuries to the plaintiff's cervical spine and observedrange-of-motion limitations were significant, permanent, and causally related to the subjectaccident. He further concluded that the plaintiff's injuries amounted to a permanentconsequential limitation of use of her cervical spine. While portions of Dr. Hausknecht's June2008 affirmed medical report must be disregarded because they recite unsworn findings of otherdoctors (see McNeil v New York CityTr. Auth., 60 AD3d 1018 [2009]), Dr. Hausknecht found, on the basis of his physicalexamination of the plaintiff contemporaneously with the subject accident and at the time of hismost recent examination of her, [*2]that she had a decreasedrange of motion in her cervical spine. Thus, Dr. Hausknecht's conclusion that the plaintiff'sinjuries constituted a permanent consequential limitation of use of her cervical spine wassufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injuryunder the significant limitation of use or the permanent consequential limitation of use categoryof Insurance Law § 5102 (d) as a result of the subject accident (see McNeil v New York City Tr.Auth., 60 AD3d 1018 [2009]).
Contrary to the defendant's contention, the plaintiff adequately explained any lengthy gap inher treatment. Rivera, J.P., Miller, Balkin, Leventhal and Hall, JJ., concur.