Melissa Castillo, Plaintiff–Appellant, v. Anthony Cinquina, Defendant–Respondent.

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

Melissa Castillo, Plaintiff–Appellant, v. Anthony Cinquina, Defendant–Respondent.

5452

Decided: June 28, 2011

Andrias, J.P., Friedman, Renwick, DeGrasse, Abdus–Salaam, JJ. W. Matthew Sakkas, New York, for appellant. Cohen, Kuhn & Associates, New York (Robert D. Wilkins of counsel), for respondent.

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Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about July 7, 2010, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint based on the failure to establish a “permanent consequential limitation” or “significant limitation” within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion denied.

Defendant made a prima facie showing of entitlement to judgment as a matter of law.   Defendant submitted the affirmed report of an orthopedic surgeon who, after conducting an independent examination of plaintiff, found that she had full range of motion in her neck and back and concluded that her injuries were resolved (see Dennis v. New York City Tr. Auth.,

84 AD3d 579 [2011] ).

In opposition, plaintiff raised triable issues of fact.   Plaintiff submitted an affidavit of her treating chiropractor who, based on testing performed both recently and contemporaneous with plaintiff's accident, found diminished range of motion in the cervical and lumbar spine and concluded that such limitations were caused by the accident (see id.).   The chiropractor's opinion was supported by objective medical evidence, namely, MRI reports indicating that plaintiff had bulging discs in the cervical and lumbar spine (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353 [2002] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK