| Dixon v Fuller |
| 2010 NY Slip Op 09884 [79 AD3d 1094] |
| December 28, 2010 |
| Appellate Division, Second Department |
| Ackeem A. Dixon et al., Appellants, v Dudley E. Fuller,Respondent, et al., Defendant. |
—[*1] Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Kings County (Vaughan, J.), dated December 16, 2009, which granted themotion of the defendant Dudley E. Fuller for summary judgment dismissing the complaintinsofar as asserted against him on the ground that neither plaintiff sustained a serious injurywithin the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantDudley E. Fuller for summary judgment dismissing the complaint insofar as asserted against himis denied.
The defendant Dudley E. Fuller (hereinafter the defendant) met his prima facie burden ofshowing that neither plaintiff sustained 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]). However, inopposition, the plaintiffs raised triable issues of fact through the affirmation of Dr. Leo Batash,their treating physician. As to the plaintiff Nadine M. Stone, Dr. Batash concluded, based on hiscontemporaneous and most recent examinations of her, which revealed significant limitations inthe lumbar regions of her spine and right knee, that her injuries were permanent and herrange-of-motion limitations were significant. He opined that she sustained a permanentconsequential limitation of use of those areas as a result of the subject accident. His findingsconcerning Stone were sufficient to raise a triable issue of fact as to whether, as a result of thesubject accident, she sustained a serious injury to the lumbar region of her spine and/or right kneeunder the permanent consequential limitation of use and/or the significant limitation of usecategories of Insurance Law § 5102 (d) (see Gussack v McCoy, 72 AD3d 644 [2010]; Casiano v Zedan, 66 AD3d 730[2009]; Ortiz v Zorbas, 62 AD3d770 [2009]).
As to the plaintiff Ackeem A. Dixon, Dr. Batash concluded, based on his contemporaneousand most recent examinations of him, which revealed significant limitations in the cervical andlumbar regions of his spine, that his injuries were permanent and his range-of-motion [*2]limitations were significant. He opined that Dixon sustained apermanent consequential limitation of use of the cervical and lumbar regions of his spine as aresult of the subject accident. His findings concerning Dixon were sufficient to raise a triableissue of fact as to whether, as a result of the subject accident, Dixon sustained a serious injury tothe cervical and lumbar regions of his spine under the permanent consequential limitation of useand/or the significant limitation of use categories of Insurance Law § 5102 (d) (see Gussack v McCoy, 72 AD3d644 [2010]; Casiano v Zedan,66 AD3d 730 [2009]; Ortiz vZorbas, 62 AD3d 770 [2009]).
Contrary to the defendant's contention, Dr. Batash's affirmation was sufficient to raise atriable issue of fact. While portions of Dr. Batash's affirmation had to be disregarded becausethey recited unsworn findings of other doctors (see Gussack v McCoy, 72 AD3d at644-645; Casiano v Zedan, 66AD3d 730 [2009]; McNeil v NewYork City Tr. Auth., 60 AD3d 1018 [2009]), Dr. Batash found, on the basis of his ownphysical examinations of the plaintiffs, made contemporaneously with the subject accident and atthe time of his most recent examinations of the plaintiffs, that both plaintiffs had significantlydecreased ranges of motions in the regions noted above. Mastro, J.P., Florio, Dickerson, Belenand Lott, JJ., concur.