| Estrella v GEICO Ins. Co. |
| 2013 NY Slip Op 00173 [102 AD3d 730] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Jason Estrella, Also Known as Jason Estrelle, et al.,Appellants, v GEICO Insurance Company et al., Defendants, and Ligia Francoet al., Respondents. |
—[*1] Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Matthew Zizzamiaand Vito A. Biundo of counsel), for respondent Herminio Carrao, Jr.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Queens County (Nelson, J.), entered October 27, 2011,which granted the motion of the defendant Herminio Carrao, Jr., and the separate motionof the defendants Ligia Franco and Hugo Toledo for summary judgment dismissing thecomplaint insofar as asserted against each of them on the ground that the infant plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d) asa result of the subject accident.
Ordered that the order is reversed, on the law, with one bill of costs payable by thedefendant Herminio Carrao, Jr., and the defendants Ligia Franco and Hugo Toledo, andthe motion of the defendant Herminio Carrao, Jr., and the separate motion of thedefendants Ligia Franco and Hugo Toledo, for summary judgment dismissing thecomplaint insofar as asserted against each of them are denied.
The defendant Herminio Carrao, Jr., and the defendants Ligia Franco and HugoToledo (hereinafter collectively the respondents), established their prima facieentitlement to judgment as a matter of law by submitting evidence, including a transcriptof the infant plaintiff's deposition testimony and the affirmation of their examiningmedical expert, Daniel Feuer, that the infant plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident(see Toure v Avis Rent A Car Sys., 98 NY2d 345, 351-352 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]; Fest v Agnew, 68 AD3d 1051 [2009]).
In opposition, the plaintiffs submitted the affirmation of Scott Gray, a physician whotreated the infant plaintiff for more than one year, commencing approximately a monthafter the subject accident. Gray set forth quantitative findings from his initialexamination and from his latest examination of the infant plaintiff, both of whichrevealed substantial range-of-motion limitations in the cervical and lumbar regions of theinfant plaintiff's spine. Since the second set of quantitative findings was not from a recentexamination of the infant plaintiff, this evidence did not raise a triable issue of fact as towhether the alleged injuries constituted a serious injury under the permanent [*2]consequential limitation of use category of Insurance Law§ 5102 (d) (see Griffiths v Munoz, 98 AD3d 997, 998 [2012]; Lively vFernandez, 85 AD3d 981, 982 [2011]).
However, "a 'significant limitation' need not be permanent in order to constitute a'serious injury' " (Partlow v Meehan, 155 AD2d 647, 647 [1989], quotingInsurance Law § 5102 [d]). "[A]ny assessment of the significance of a bodilylimitation necessarily requires consideration not only of the extent or degree oflimitation, but of its duration as well, notwithstanding the fact that Insurance Law§ 5102 (d) does not expressly set forth any temporal requirement for a significantlimitation" (Griffiths v Munoz, 98 AD3d at 998 [internal quotation marks andcitations omitted]; see Lively v Fernandez, 85 AD3d at 982; Partlow vMeehan, 155 AD2d at 648). Here, Gray's quantitative findings from the twoexaminations raised a triable issue of fact as to whether, as a result of the subjectaccident, the infant plaintiff sustained a significant limitation of use in the cervical andlumbar regions of his spine both in the degree of limitation and its duration (cf.Griffiths v Munoz, 98 AD3d at 998; Lively v Fernandez, 85 AD3d at982). Accordingly, the Supreme Court should have denied the respondents' motions forsummary judgment dismissing the complaint insofar as asserted against each of them.Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.