GIORDANO v. ALLSTARZ LIMOUSINE LTD (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated July 5, 2007, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The defendants met their prima facie burden of showing that 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, 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;  Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 49-50, 789 N.Y.S.2d 281).   Contrary to the Supreme Court's determination, in opposition, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury under the permanent, consequential, and/or significant limitation of use categories of Insurance Law § 5102(d) to the cervical and/or lumbar regions of his spine as a result of the subject accident.   The plaintiff's treating neurologists and chiropractor opined that the plaintiff's spinal injuries and range-of-motion limitations were significant and permanent, and were causally related to the subject accident, based on their contemporaneous and most recent examinations of the plaintiff, as well as their review of the affirmed cervical spine magnetic resonance imaging report prepared by the plaintiff's treating radiologist, which showed bulging discs at C4-5 and C5-6 and a disc herniation at C3-4 (see Casey v. Mas Transp., Inc., 48 A.D.3d 610, 852 N.Y.S.2d 373;  Gibson v. Tordoya, 44 A.D.3d 1000, 844 N.Y.S.2d 431;  Green v. Nara Car & Limo, Inc., 42 A.D.3d 430, 839 N.Y.S.2d 543;  Francovig v. Senekis Cab Corp., 41 A.D.3d 643, 644-645, 838 N.Y.S.2d 635;  Hyun Jun Kim v. Collazo, 38 A.D.3d 842, 834 N.Y.S.2d 207;  Lim v. Tiburzi, 36 A.D.3d 671, 829 N.Y.S.2d 145;  Clervoix v. Edwards, 10 A.D.3d 626, 781 N.Y.S.2d 690).