Brooks v. Zises

16 A.D.3d 221, 793 N.Y.S.2d 7, 2005 N.Y. App. Div. LEXIS 2689

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 2005
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered July 26, 2004, which, insofar as appealed from, denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Issues of fact as to whether plaintiffs suffered serious injuries within the meaning of Insurance Law § 5102 (d) are raised by the affirmations of their treating physicians correlating significant quantified range of motion limitations in their upper and lower backs to, inter alia, herniated discs described in reports of MRI, EMC and other tests performed by other physicians, and opining that the limitations were caused by the subject accident and are permanent (see Cespedes v McNamee, 308 AD2d 409 [2003]; Verderosa v Simonelli, 260 AD2d 293 [1999]; cf. Arjona v Calcano, 7 AD3d 279 [2004]). The fact that plaintiff driver underwent back surgery for a herniated disc 2V2 years after the last date of treatment goes to the weight, not the admissibility, of his evidence of causation (see Manrique v Warshaw Woolen Assoc., 297 AD2d 519, 520 [2002]). We have considered and rejected defendants’ other arguments. Concur—Buckley, P.J., Mazzarelli, Sullivan, Williams and Gonzalez, JJ.