Sepulveda v. Reyes

19 A.D.3d 297, 797 N.Y.S.2d 487, 2005 N.Y. App. Div. LEXIS 7170

Opinion

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered September 17, 2003, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The evaluation by plaintiffs’ treating physician, Dr. Etkind, was based on his own examination and objective medical evidence, including MRIs (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]), and concluded with the opinion that the injuries were both related to the accident and permanent. This raises issues of fact as to whether these plaintiffs sustained “serious injury” within the meaning of Insurance Law § 5102 (d). There is sufficient explanation in the record for the alleged gap of over three years between the discontinuance of plaintiffs’ treatment and their examination by Dr. Etkind. Concur—Tom, J.P., Andrias, Marlow, Ellerin and Sweeny, JJ.