| Modeste v Mercier |
| 2009 NY Slip Op 08590 [67 AD3d 871] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Loxley Modeste, Respondent, v Jean B. Mercier,Appellant, et al., Defendants. |
—[*1] Morrison & Wagner, LLP, New York, N.Y. (Eric Morrison of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Jean B. Mercier appealsfrom an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 8, 2008,which denied her motion for summary judgment dismissing the complaint insofar as assertedagainst her on the ground that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The appellant made a prima facie showing that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident (seeToure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]; Kearse v New YorkCity Tr. Auth., 16 AD3d 45, 49-50 [2005]). In opposition, the plaintiff submitted, interalia, affirmations from one of his treating physicians, his treating orthopedic surgeon, and aradiologist. These submissions raised a triable issue of fact as to whether he sustained a seriousinjury to the cervical and/or lumbar regions of his spine as a result of the subject accident underthe permanent consequential limitation of use category and/or the significant limitation of usecategory of Insurance Law § 5102 (d) (see Wagenstein v Haoli, 64 AD3d 584 [2009]; 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]).
Contrary to the appellant's contention on appeal, the plaintiff, via his submissions inopposition, addressed and refuted the findings of the appellant's radiologist concerning the issueof degeneration. Rivera, J.P., Covello, Angiolillo, Leventhal and Roman, JJ., concur.