| Harris v Boudart |
| 2010 NY Slip Op 00813 [70 AD3d 643] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Linda Harris, Appellant, v Raymond Boudart et al.,Respondents. |
—[*1] Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgmentof the Supreme Court, Nassau County, dated January 12, 2009, which, upon an order of the samecourt (LaMarca, J.), dated November 24, 2008, made upon reargument and renewal, adhering toa prior determination in an order dated June 18, 2008, granting the defendants' motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d), is in favor of thedefendants and against her, dismissing the complaint. The notice of appeal from the order datedNovember 24, 2008, is deemed a notice of appeal from the judgment dated January 12, 2009(see CPLR 5512 [a]).
Ordered that the judgment is reversed, on the law, with costs, upon reargument and renewal,the order dated June 18, 2008, is vacated, and the defendants' motion for summary judgmentdismissing the complaint is denied, and the order dated November 24, 2008, is modifiedaccordingly.
While the defendants met their prima facie burden of showing that the plaintiff did notsustain a serious injury within the meaning of 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 serious injury to her cervical and/or lumbar spine under thepermanent consequential and/or the significant limitation of use categories of Insurance Law§ 5102 (d) as a result of the subject accident (see Dong Soo Kim v Kottler, 58 AD3d 670 [2009]; Williams v Clark, 54 AD3d 942[2008]; Casey v Mas Transp., Inc.,48 AD3d 610 [2008]; Green v NaraCar & Limo, Inc., 42 AD3d 430 [2007]).
The plaintiff's treating chiropractor, James W. Rogers, opined, based on hiscontemporaneous and recent examinations of the plaintiff, as well as on his review of theplaintiff's magnetic resonance imaging reports, which showed, inter alia, disc bulges in thecervical spine and disc herniation in the lumbar spine, that the plaintiff's lumbar and cervicalinjuries and observed range of motion limitations were permanent and causally related to thesubject accident. He further concluded that the injuries amounted to a permanent consequentiallimitation of use of the cervical and lumbar spine as well as a significant limitation of use ofthose regions.
Contrary to the defendants' contention, the plaintiff's treating physician, Philip Rafiy, [*2]sufficiently addressed a prior injury to the plaintiff's neck in 1988,18 years before the subject accident, noting that despite her intermittent neck pain, sheessentially had been asymptomatic and without treatment for at least 15 years. Coupled with thefacts that even the defendants' doctor, Naunihal Sachdev Singh, concluded that what hedescribed as a cervical spine sprain was caused by the instant accident and that the plaintiff alsosustained an injury to her lumbar spine, the plaintiff was not obliged to do more to overcome thedefendants' motion for summary judgment motion (see Pommells v Perez, 4 NY3d 566, 578 [2005]; Linton v Nawaz, 62 AD3d 434,441 [2009]; Sforza v Big Guy LeasingCorp., 51 AD3d 659, 661 [2008]).
Similarly, contrary to the defendants' contention, although the plaintiff's submissions did notdirectly address the defendants' radiologist's opinion that the injuries were degenerative innature, the magnetic resonance imaging reports based on testing performed contemporaneouslywith the subject accident contained no findings that the plaintiff's injuries were degenerative innature. Moreover, the plaintiff's treating physician and chiropractor gave no indication that hersymptoms may have been caused by degeneration changes, were chronic, or were caused byanything other than the accident (see Pommells v Perez, 4 NY3d at 577-578; Lintonv Nawaz, 62 AD3d at 441; Sforza v Big Guy Leasing Corp., 51 AD3d at 660-661).
Contrary to the defendants' contention, there was no lengthy gap in treatment (seePommells v Perez, 4 NY3d at 574; Seecoomar v Ly, 43 AD3d 900, 901 [2007]).
Accordingly, the Supreme Court should have denied the defendants' motion for summaryjudgment dismissing the complaint. Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.