Connie Park, respondent, v. Komal H. Shaikh, et al., appellants. (2011)

Submitted-March 9, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated May 6, 2010, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff 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 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;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957).   In support of their motion, the defendants relied, inter alia, on the affirmed report of Dr. Gregory Montalbano, an orthopedic surgeon.   Dr. Montalbano examined the plaintiff and, although he found that she exhibited diminished range of motion in, among other things, the lumbar region of her spine, he concluded that this symptom was caused by degenerative disc disease unrelated to the subject motor vehicle accident.

In opposition, the plaintiff raised a triable issue of fact by submitting reports from, inter alia, her treating physician, Dr. Michael Trimba, attesting that her limitations resulted from trauma causally related to the subject accident, rather than from degenerative disease (see Licari v. Elliott, 57 N.Y.2d 230, 239;  Compass v. GAE Transp., Inc., 79 AD3d 1091).   Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint (see Benitez v. Lashnitz, 70 AD3d 879).

DILLON, J.P., LEVENTHAL, BELEN, AUSTIN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court