ALTRECHE v. GILMAR MASONRY CORP (2008)

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated April 24, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Alicia Altreche on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

 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 N.Y.2d 345, 350-351, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   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 plaintiff's 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 plaintiff's 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 plaintiff's spinal injuries and range of motion limitations observed were permanent, and were causally related to the subject accident (see Morales v. Theagene, 46 A.D.3d 775, 848 N.Y.S.2d 325;  Nigro v. Kovac, 45 A.D.3d 547, 548, 845 N.Y.S.2d 404;  Green v. Nara Car & Limo, Inc., 42 A.D.3d 430, 431, 839 N.Y.S.2d 543).   Contrary to the defendants' contention on appeal, the plaintiffs adequately explained the gap in the plaintiff's treatment (see Gibson v. Tordoya, 44 A.D.3d 1000, 1001, 844 N.Y.S.2d 431;  Black v. Robinson, 305 A.D.2d 438, 439-440, 759 N.Y.S.2d 741).