| Tai Ho Kang v Young Sun Cho |
| 2010 NY Slip Op 05757 [74 AD3d 1328] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Tai Ho Kang, Appellant, v Young Sun Cho, Respondent.(And a Related Action.) |
—[*1] Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (Barbara L. Hall of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (LaMarca, J.), dated June22, 2009, as granted the defendant's motion for summary judgment dismissing the complaint onthe ground that he did not sustain a serious injury within the meaning of Insurance Law §5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion for summary judgment dismissing the complaint on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) isdenied.
The defendant met his prima facie burden of showing that the plaintiff in that action 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 of fact based on the affirmation of Dr.Michael Trimba, the plaintiff's treating physician. Based on Dr. Trimba's contemporaneous andrecent examinations of the plaintiff, which revealed significant limitations in the cervical andlumbar regions of the plaintiff's spine, and his review of the affirmed reports of magneticresonance imaging scans of those regions of the plaintiff's spine, which revealed bulging discs atC5-6, C6-7, L4-5, and L5-S1, Dr. Trimba concluded that the injuries to the cervical and lumbarregions of the plaintiff's spine, and range-of-motion limitations observed during hisexaminations, were permanent and causally related to the subject accident. This submissionalone was sufficient to raise a triable issue of fact as to whether he sustained a serious injury tothe cervical and/or lumbar regions of his spine under the permanent consequential limitation ofuse and/or the significant limitation of use categories of Insurance Law § 5102 (d) as aresult of the subject accident (see Barry v Valerio, 72 AD3d 996 [2010]; Williams vClark, 54 AD3d 942 [2008]; Casey v Mas Transp., Inc., 48 AD3d 610 [2008];Green v Nara Car & Limo, Inc., 42 AD3d 430 [2007]; Francovig v Senekis CabCorp., 41 AD3d 643, 644-645 [2007]; Acosta v Rubin, 2 AD3d 657 [2003]).[*2]
Contrary to the defendant's assertion, the plaintiffadequately explained any lengthy gap in his treatment in his affidavit, in which he stated that hisno-fault benefits were terminated in October 2007 and he could not afford further treatmentthereafter (see Black v Robinson, 305 AD2d 438 [2003]; see also Domanas vDelgado Travel Agency, Inc., 56 AD3d 717 [2008]; Jules v Barbecho, 55 AD3d 548[2008]). To the extent that the defendant argues that the plaintiff failed to address the findings ofhis retained radiologist, Dr. Melissa Sapan Cohn, that the plaintiff's injuries to the cervical andlumbar regions of the plaintiff's spine were degenerative in nature, that contention is incorrect. Inhis affirmation, Dr. Trimba specifically stated that the plaintiff's injuries were not the result ofdegenerative processes, but were caused by the subject accident. Thus, Dr. Trimba adequatelyaddressed the issue of degeneration and refuted the defendant's assertions in that respect (seeWhitehead v Olsen, 70 AD3d 678 [2010]; Modeste v Mercier, 67 AD3d 871[2009]).
Therefore, the Supreme Court erred in granting the defendant's motion for summaryjudgment dismissing the complaint. Skelos, J.P., Miller, Eng, Hall and Austin, JJ., concur.