| Serbia v Mudge |
| 2012 NY Slip Op 04228 [95 AD3d 786] |
| May 31, 2012 |
| Appellate Division, First Department |
| Carmen Serbia, Appellant, v Arthur Mudge et al.,Respondents. |
—[*1] Law Office of Lori D. Fishman, Tarrytown (Michael J. Latini of counsel), forrespondents.
Order, Supreme Court, Bronx County (Lizbeth GonzÁlez, J.), entered March 9, 2011,which granted defendants' motion for summary judgment dismissing the complaint based on thefailure to establish a serious injury within the meaning of Insurance Law § 5102 (d),unanimously reversed, on the law, without costs, and the motion denied.
Defendants made a prima facie showing of entitlement to summary judgment as to plaintiff'sclaims of "significant limitation of use" of her lumbar spine, by submitting expert medical reportsfinding normal ranges of motion, as well as the report of a radiologist who opined that theherniated disc shown in an MRI of the plaintiff was not acute or caused by the accident(Insurance Law § 5102 [d]).
The preclusion of plaintiff's expert neurologist's and radiologist's reports was an improvidentexercise of discretion, since defendants relied on plaintiff's neurologist's report, were equallyuntimely in serving their radiologist's report and thus cannot show prejudice by the lateness ofthe exchange (see Martin v TriboroughBridge & Tunnel Auth., 73 AD3d 481, 482 [2010], lv denied 15 NY3d 713[2010]; Browne v Smith, 65 AD3d996 [2009]).
In opposition, plaintiff submitted competent medical evidence raising an issue of fact as toher lumbar spine injuries, including the report of the radiologist who submitted a nonconclusoryopinion sufficiently rebutting defendants' expert opinion regarding the cause of plaintiff'sherniated disc, and of her treating physician, who opined, after a full examination soon after theaccident, that her injuries were causally related to the accident (see Ramos v Rodriguez, 93 AD3d473 [2012]).
Plaintiff adequately explained the gap in treatment by asserting in her affidavit that she [*2]stopped receiving treatment for her injuries when her no-faultinsurance benefits were cut off, and she lacked income to continue treatment (see Browne v Covington, 82 AD3d406 [2011]). Concur—Tom, J.P., Andrias, Saxe, Moskowitz and Acosta, JJ.