Opinion
01-19-2017
Osmarie ENCARNACION, Plaintiff–Respondent, v. Luis R. CASTILLO, Defendant–Appellant, Micky Santiago–Gonzalez, Defendant.
Robert A. Peirce & Associates, White Plains (Julie L. Mer of counsel), for appellant. The Law Office of Robert E. Schleier, Jr., PLLC, Huntington (Robert E. Schleier, Jr. of counsel), for respondent.
Robert A. Peirce & Associates, White Plains (Julie L. Mer of counsel), for appellant.
The Law Office of Robert E. Schleier, Jr., PLLC, Huntington (Robert E. Schleier, Jr. of counsel), for respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about August 17, 2016, which, insofar as appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the claims of serious injury of a permanent nature within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendant established prima facie that plaintiff did not sustain a serious injury involving significant or permanent consequential limitations of use of her cervical and lumbar spine through the affirmed report of an orthopedist who found normal ranges of motion, negative test results, and resolved strains/sprains in those parts (see Reyes v. Se Park, 127 A.D.3d 459, 8 N.Y.S.3d 22 [1st Dept.2015] ; Rickert v. Diaz, 112 A.D.3d 451, 976 N.Y.S.2d 80 [1st Dept.2013] ). Defendant's expert did not dispute that MRI studies of plaintiff's spine revealed disc herniations impinging on the thecal sac at multiple levels, and that her spinal injuries were causally related to the motor vehicle accident, which involved a head-on collision on a highway.
In opposition, plaintiff raised an issue of fact through the affirmed report of a physician who found continuing limitations in range of motion and objective indications of injury to her cervical and lumbar spine, and opined that the injuries were causally related to the accident and permanent in nature (see Dacosta v. Gibbs, 139 A.D.3d 487, 33 N.Y.S.3d 160 [1st Dept.2016] ; Santana v. Tic–Tak Limo Corp., 106 A.D.3d 572, 966 N.Y.S.2d 30 [1st Dept.2013] ). Defendant's treatment-gap argument is unpreserved for review (see Tadesse v. Degnich, 81 A.D.3d 570, 917 N.Y.S.2d 569 [1st Dept.2011] ). In any event, plaintiff provided an adequate explanation by averring that her insurance carrier ceased to pay for her treatment, which she could not cover out of her own pocket (see Ramkumar v. Grand Style Transp. Enters. Inc., 22 N.Y.3d 905, 976 N.Y.S.2d 1, 998 N.E.2d 801 [2013] ; Serbia v. Mudge, 95 A.D.3d 786, 787, 945 N.Y.S.2d 296 [1st Dept.2012] ).
ANDRIAS, J.P., SAXE, FEINMAN, GISCHE, KAHN, JJ., concur.