| Evans v Pitt |
| 2010 NY Slip Op 07138 [77 AD3d 611] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Reinford Evans, Respondent, v Lakisha Pitt,Appellant. |
—[*1] Robert T. Acker, P.C., Massapequa, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from so much of anorder of the Supreme Court, Suffolk County (Cohalan, J.), dated May 19, 2010, as denied her crossmotion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
While we affirm the order appealed from, we do so on a ground other than that relied upon by theSupreme Court. Contrary to the Supreme Court's determination, the defendant met her prima facieburden of showing 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., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; see also Kearse v New York City Tr. Auth.,16 AD3d 45, 49-50 [2005]).
In opposition, the plaintiff raised a triable issue of fact based on the affidavit of his treatingchiropractor, Dr. Jamie Skurka. Based on Dr. Skurka's contemporaneous and recent examinations ofthe plaintiff, which revealed significant limitations of the range of motion in the cervical and lumbarregions of the plaintiff's spine, and his review of the magnetic resonance imaging films of those regions ofthe plaintiff's spine, which revealed, inter alia, herniated discs at C3-4, C4-5, C6-7, and L4-5, Dr.Skurka concluded that the injuries to the cervical and lumbar regions of the plaintiff's spine, andsignificant range of motion limitations observed during the examinations, were permanent and causallyrelated to the subject accident. This submission alone was sufficient to raise a triable issue of fact as towhether the plaintiff sustained a serious injury to the cervical and/or lumbar regions of his spine underthe permanent consequential limitation of use and/or the significant limitation of use categories ofInsurance Law § 5102 (d) as a result of the subject accident (see Tai Ho Kang v Young SunCho,74 AD3d 1328 [2010]; Barry vValerio, 72 AD3d 996 [2010]; Williams v Clark, 54 AD3d 942 [2008]; Casey v Mas Transp., Inc., 48 AD3d610 [2008]; Green v Nara Car & Limo,Inc., 42 AD3d 430 [2007]; Francovig v Senekis Cab Corp., 41 AD3d 643 [2007]; Acosta v Rubin, 2 AD3d 657 [2003]).[*2]
The plaintiff also provided an adequate explanation for the gapin his treatment history (see Pommells vPerez, 4 NY3d 566, 577 [2005]; Delorbe v Perez, 59 AD3d 491, 492 [2009]; Black v Robinson,305 AD2d 438, 439-440 [2003]). Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.