Opinion
2012-10-18
Luis PINDO, Plaintiff–Respondent, v. Elicias LENIS, Defendant–Appellant, Carlos Ramales, et al., Defendants.
Martin, Fallon & Mullé, Huntington (Stephen P. Burke of counsel), for appellant. Rosenblatt, Frasciello & Knipping–Diaz, LLC, New York (Giulio S. Frasciello of counsel), for respondent.
Martin, Fallon & Mullé, Huntington (Stephen P. Burke of counsel), for appellant. Rosenblatt, Frasciello & Knipping–Diaz, LLC, New York (Giulio S. Frasciello of counsel), for respondent.
, J.P., MOSKOWITZ, FREEDMAN, RICHTER, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered January 12, 2012, which, insofar as appealed from, denied defendant Elicias Lenis's motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
In response to defendant's prima facie showing that plaintiff did not sustain a serious injury, plaintiff proffered sufficient evidence to raise an issue of fact as to whether the alleged injuries to his cervical and lumbar spines were “significant” within the meaning of Insurance Law § 5102(d). Days after the accident, plaintiff's treating physician found that his cervical and lumbar spine suffered limitations in range of motion in multiple planes, and that physician continued to find diminished ranges of motion at subsequent examinations. Such injuries, if proven, are significant enough to provide a basis for finding a serious injury under Insurance Law § 5102(d) ( see Garner v. Tong, 27 A.D.3d 401, 811 N.Y.S.2d 400 [1st Dept. 2006];Howard v. King, 307 A.D.2d 278, 762 N.Y.S.2d 423 [2d Dept. 2003];see also Vega v. MTA Bus Co., 96 A.D.3d 506, 946 N.Y.S.2d 162 [1st Dept. 2012];Rosa–Diaz v. Maria Auto Corp., 79 A.D.3d 463, 913 N.Y.S.2d 51 [1st Dept. 2010] ).
As for defendant's gap in treatment argument, plaintiff submitted an affidavit explaining that he attended extensive physical and rehabilitative therapy, until his insurer advised him that his no fault benefits had expired, and that he could no longer afford treatment. This Court has repeatedly found such an explanation adequate to raise an issue of fact ( see e.g. Serbia v. Mudge, 95 A.D.3d 786, 945 N.Y.S.2d 296 [1st Dept. 2012];Browne v. Covington, 82 A.D.3d 406, 918 N.Y.S.2d 36 [1st Dept. 2011] ).