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Supreme Court, Appellate Division, First Department, New York.

Guillermo SEPULVEDA, et al., Plaintiffs-Respondents, v. Enrique REYES, et al., Defendants-Appellants.

Decided: June 28, 2005

TOM, J.P., ANDRIAS, MARLOW, ELLERIN, SWEENY, JJ. Anthony J. Centone, White Plains, for appellants. Sheldon H. Kronegold, New York, for respondents.

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered September 17, 2003, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The evaluation by plaintiffs' treating physician, Dr. Etkind, was based on his own examination and objective medical evidence, including MRIs (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ), and concluded with the opinion that the injuries were both related to the accident and permanent.   This raises issues of fact as to whether these plaintiffs sustained “serious injury” within the meaning of Insurance Law § 5102(d).  There is sufficient explanation in the record for the alleged gap of over three years between the discontinuance of plaintiffs' treatment and their examination by Dr. Etkind.