| Whitehead v Olsen |
| 2010 NY Slip Op 00839 [70 AD3d 678] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Kathleen Whitehead, Respondent, v Matthew R. Olsen etal., Appellants. |
—[*1] Rosenberg & Gluck, LLP, Holtsville, N.Y. (Matthew Bligh of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Costello, J.), dated November 19, 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 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]; see also Giraldo v Mandanici, 24 AD3d 419 [2005]). Inopposition, the plaintiff principally relied on the affidavit of her treating chiropractor, Dr. Kim L.Wist. In that affidavit, Dr. Wist opined that the plaintiff's lumbar injuries and observedrange-of-motion limitations were significant and permanent, and causally related to the subjectaccident. Dr. Wist based her opinion on her contemporaneous and most recent examination ofthe plaintiff and her review of the plaintiff's magnetic resonance imaging reports of, inter alia,her lumbar region, which revealed a herniated disc at L4-5 and a bulging disc at L5-S1. Thus, theplaintiff raised a triable issue of fact as to whether she sustained a serious injury to her lumbarspine under the permanent consequential limitation of use or the significant limitation of usecategory of Insurance Law § 5102 (d) as a result of the subject accident (see Eusebio v Yannetti, 68 AD3d919 [2009]; Sanevich vLyubomir, 66 AD3d 665 [2009]; Azor v Torado, 59 AD3d 367, 368 [2009]; Williams v Clark, 54 AD3d 942,943 [2008]; Casey v Mas Transp.,Inc., 48 AD3d 610, 611 [2008]; Green v Nara Car & Limo, Inc., 42 AD3d 430, 431 [2007]; Francovig v Senekis Cab Corp., 41AD3d 643, 644-645 [2007]).
Contrary to the defendants' contentions on appeal, there was no gap in the plaintiff'streatment. Dr. Wist explained in her affidavit that the plaintiff essentially was treated by hercontinuously from the time of the subject accident until her recent examination of the plaintiff in2008. Furthermore, Dr. Wist adequately addressed in her affidavit any issues regardingdegeneration. Skelos, J.P., Covello, Eng, Chambers and Sgroi, JJ., concur.