| Gussack v McCoy |
| 2010 NY Slip Op 02921 [72 AD3d 644] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Roberta Gussack, Appellant, v Kelly L. McCoy,Respondent. |
—[*1] Martyn, Toher & Martyn (Loccisano & Larkin, Hauppauge, N.Y. [Erica L. Ingebretsen], ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Baisley, Jr., J.), entered February 20, 2009, which grantedthe defendant's motion for summary judgment dismissing the complaint on the ground that shedid not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The Supreme Court properly determined that the defendant met her prima facie burden ofshowing that the plaintiff 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]). However, theSupreme Court erred in determining that the plaintiff failed to raise a triable issue of fact inopposition to that showing.
In opposition to the defendant's motion, the plaintiff relied on the affidavit of her treatingchiropractor, Dr. Philip F. Muench. In his affidavit, Muench opined, based upon hiscontemporaneous and most recent examinations of the plaintiff, that the plaintiff's cervicalcondition and the limitations of motion he noted were permanent, significant, and causallyrelated to the subject accident. While portions of Muench's affidavit must be disregarded becausethey recite unsworn findings of other doctors (see Casiano v Zedan, 66 AD3d 730 [2009]; McNeil v New York City Tr. Auth., 60AD3d 1018 [2009]), Muench found, on the basis of his own physical examinations of theplaintiff, made contemporaneously with the subject accident and at the time of his most recentexamination of the plaintiff, that the plaintiff had a quantified decreased range of motion in hercervical spine compared to the norm. Thus, Muench's conclusions concerning the plaintiff'scervical injuries were sufficient to raise a triable issue of fact as to whether, as a result of thesubject accident, the plaintiff sustained a serious injury to her cervical spine under the significantlimitation of use or the permanent consequential limitation of use categories of Insurance Law§ 5102 (d) (see Casiano v [*2]Zedan, 66 AD3d 730 [2009]; McNeil v New York City Tr. Auth., 60AD3d 1018 [2009]).
Contrary to the defendant's assertions, the plaintiff adequately explained the lengthy gap inher treatment (see Pommells vPerez, 4 NY3d 566, 577 [2005]; Bonilla v Tortoriello, 62 AD3d 637, 639 [2009]). Skelos, J.P.,Dillon, Angiolillo, Eng and Sgroi, JJ., concur. [Prior Case History: 2009 NY Slip Op30400(U).]