| Abdelaziz v Fazel |
| 2010 NY Slip Op 08877 [78 AD3d 1086] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Mohammed Abdelaziz, Appellant, v Sadiq Fazel et al.,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Vaughan, J.), dated February 17, 2010, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
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]). In opposition, the plaintiff raised a triable issue offact. In his affirmation, Dr. Nassef F. Hassan, one of the plaintiff's treating physicians, noted thattesting conducted on the date of the subject accident, February 14, 2005, revealed significantlimitations in plantar flexion and dorsiflexion of the plaintiff's right ankle. Dr. Hassan's annexedaffirmed medical reports revealed similar limitations in existence on July 8, 2005.
The affirmed medical reports of Dr. Harshad C. Bhatt, the plaintiff's treating orthopedicsurgeon, indicated that on October 15, 2007, the plaintiff had significant limitations in his rightankle range of motion. When he retested the plaintiff in September 2009, he noted thatsignificant limitations were also present. Dr. Bhatt opined that the plaintiff's right ankle injurieswere causally related to the subject accident and amounted to a "permanent partial disability."
The plaintiff, in his affidavit, explained the gap in his treatment, stating that he stoppedtreatment after his no-fault benefits were terminated and he could not afford to personally pay forfurther treatment (see Black v Robinson, 305 AD2d 438, 439-440 [2003]; see alsoDomanas v Delgado Travel Agency, Inc., 56 AD3d 717, 718 [2008]; Jules vBarbecho, 55 AD3d 548, 549 [2008]).
Accordingly, the Supreme Court should have denied the defendants' motion for summaryjudgment dismissing the complaint. Rivera, J.P., Covello, Leventhal and Austin, JJ., concur.