Altreche v. Gilmar Masonry Corp.

49 A.D.3d 479, 853 N.Y.2d 371

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 2008
• Status: Published

Opinion

The defendants met their prima facie burden of establishing that the plaintiff Alicia Altreche (hereinafter the plaintiff) did not sustain 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., 98 NY2d 345, 350-351 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiffs raised a triable issue of fact as to whether the plaintiff sustained a serious injury under the permanent loss and permanent consequential and/or significant limitation of use categories of Insurance Law § 5102 (d) to her cervical and/or lumbar spines as a result of the subject accident. The opinion of the plaintiffs treating physician was based both on his contemporaneous and his most recent examinations of the plaintiff, as well as upon his review of, inter alia, the plaintiffs cervical and lumbar magnetic resonance imaging reports, which showed, among other things, disc bulges at C2 through C5 and a disc herniation at L5-S1. He opined that the plaintiffs spinal injuries and range of motion limitations observed were permanent, and were causally related to the subject accident (see Morales v Theagene, 46 AD3d 775 [2007]; Nigro v Kovac, 45 AD3d 547, 548 [2007]; Green v Nara Car & Limo, Inc., 42 AD3d 430, 431 [2007]). Contrary to the defendants’ contention on appeal, the plaintiffs adequately explained the gap in the plaintiffs treatment (see Gibson v Tordoya, 44 AD3d 1000, 1001 [2007]; Black v Robinson, 305 AD2d 438, 439-440 [2003]). Spolzino, J.P., Santucci, Dillon and Balkin, JJ., concur.