HWA SOON UM v. HOI KU YANG (2009)

In an action to recover damages for personal injuries, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Satterfield, J.), entered May 2, 2008 which, upon an order of the same court entered March 31, 2008, granting the motion of the defendant Hoi Ku Yang and the separate motion of the defendants Anthony Rambazis and N.Y. Hospital Medical for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d), is in favor of the defendants and against them dismissing the complaint.

ORDERED that the judgment is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the defendants' motions for summary judgment dismissing the complaint insofar as asserted against each of them are denied, the complaint is reinstated, and the order entered March 31, 2008, is modified accordingly.

 The defendants, in moving for summary judgment, relied on the same submissions.   The defendants failed to meet their prima facie burdens of showing that the plaintiff Hwa Soon Um did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (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;  see also Meyers v. Bobower Yeshiva Bnei Zion, 20 A.D.3d 456, 797 N.Y.S.2d 773).   In this respect, the defendants relied, inter alia, on the affirmed medical report of Edward Toriello, the defendants' examining orthopedic surgeon.   Dr. Toriello examined Hwa Soon Um on March 12, 2007, and noted the existence of a significant limitation in the range of motion of her lumbar spine on that date (see Torres v. Garcia, 59 A.D.3d 705, 874 N.Y.S.2d 527;  Bagot v. Singh, 59 A.D.3d 368, 871 N.Y.S.2d 917;  Hurtte v. Budget Roadside Care, 54 A.D.3d 362, 861 N.Y.S.2d 949;  Jenkins v. Miled Hacking Corp., 43 A.D.3d 393, 841 N.Y.S.2d 317;  Bentivegna v. Stein, 42 A.D.3d 555, 556, 841 N.Y.S.2d 316;   Zamaniyan v. Vrabeck, 41 A.D.3d 472, 473, 835 N.Y.S.2d 903).   Since the defendants failed to establish their prima facie entitlements to judgment as a matter of law with respect to Hwa Soon Um, it is unnecessary to reach the question of whether the plaintiffs' papers were sufficient to raise a triable issue of fact with respect to her injuries (see Torres v. Garcia, 59 A.D.3d 705, 874 N.Y.S.2d 527;  Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

 The defendants met their prima facie burdens of showing that the plaintiff Ok Im Yoon did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.   In opposition to the defendants' motions, however, the plaintiffs, via the affidavit of a treating physician, raised a triable issue of fact as to whether Ok Im Yoon sustained a serious injury insofar as she sustained a permanent consequential limitation of use or a significant limitation of use of her lumbar spine as a result of the subject accident (see Williams v. Clark, 54 A.D.3d 942, 864 N.Y.S.2d 493;  Casey v. Mas Transp., Inc., 48 A.D.3d 610, 852 N.Y.S.2d 373;  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;  Acosta v. Rubin, 2 A.D.3d 657, 768 N.Y.S.2d 642).

In his affidavit, Dr. Ki Y. Park opined, based on his contemporaneous and most recent examination of Ok Im Yoon, as well as upon his review of affirmed reports of magnetic resonance imaging scans referable to her depicting, inter alia, herniated discs in the lumbar spine at L3-4 and L4-5, that the lumbar injuries sustained by Ok Im Yoon and the observed range-of-motion limitations referable to those injuries were permanent and causally related to the subject accident.   Park further concluded that the injuries sustained by Ok Im Yoon amounted to a permanent consequential limitation of use and/or a significant limitation of use of her lumbar spine.

Ok Im Yoon, as well as Dr. Park, adequately explained the gap in treatment between May 31, 2005, and November 20, 2007 (see Pommells v. Perez, 4 N.Y.3d 566, 574, 577, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Gutierrez v. Yonkers Contracting Co., 61 A.D.3d 823, 877 N.Y.S.2d 226;  Black v. Robinson, 305 A.D.2d 438, 439-440, 759 N.Y.S.2d 741).

The defendants' remaining contentions are without merit.