| Compass v GAE Transp., Inc. |
| 2010 NY Slip Op 09881 [79 AD3d 1091] |
| December 28, 2010 |
| Appellate Division, Second Department |
| Briston C. Compass et al., Respondents, v GAETransportation, Inc., et al., Appellants. |
—[*1] Costella & Gordon, LLP, Garden City, N.Y. (Roy C. Gordon of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (McCarty III, J.), entered June 8, 2010, which denied theirmotion for summary judgment dismissing the complaint on the ground that neither of theplaintiffs sustained 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 neither plaintiff sustained 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 plaintiffs raised triable issues offact as to whether they sustained serious injuries to the cervical and/or lumbar regions of theirrespective spines under the permanent consequential limitation of use and/or the significantlimitation of use categories of Insurance Law § 5102 (d) (see Evans v Pitt, 77 AD3d 611[2010]; Tai Ho Kang v Young SunCho, 74 AD3d 1328, 1329 [2010]; Barry v Valerio, 72 AD3d 996 [2010]; 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]; Acostav Rubin, 2 AD3d 657, 659 [2003]). These issues of fact were raised by the affirmedmedical reports of Dr. Samuel Kelman. Dr. Kelman concluded, based on his contemporaneousand recent examinations of the plaintiffs, which revealed significant limitations in the cervicaland lumbar regions of their respective spines, and his review of their magnetic resonanceimaging films, which revealed herniated and bulging discs, that the injuries to the cervical andlumbar regions of the plaintiffs' spines and range-of-motion limitations amounted to permanentconsequential limitations of use and significant limitations of use of their respective spines.
In opposition to the defendants' prima facie showing that certain injuries to the spine of theplaintiff Briston C. Compass were degenerative in nature or caused by anything other than thesubject accident, a triable issue of fact was raised by the affirmed medical report of Dr. Kelmanwith [*2]respect to that plaintiff. In that affirmed medical report,Dr. Kelman noted that he had reviewed the magnetic resonance imaging films of the cervical andlumbar regions of Compass's spine and did not agree that any of Compass's herniated or bulgingdiscs were degenerative in nature. He concluded, based on his review of those films, that thosefindings were recent and caused by the subject accident. Rivera, J.P., Covello, Eng, Leventhaland Austin, JJ., concur.