CARABALLO v. PEARSON

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

Elmer CARABALLO, respondent, et al., plaintiff, v. David R. PEARSON, et al., appellants.

Decided: May 24, 1999

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO and HOWARD MILLER, JJ. Frank V. Merlino, Garden City, N.Y. (David Holmes of counsel), for appellants. Jaghab & Jaghab, Mineola, N.Y. (Erik J. Gerstenfeld of counsel), for respondent and for plaintiff Jose Caraballo.

In an action, inter alia, to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated October 9, 1998, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted on behalf of the plaintiff Elmer Caraballo.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted on behalf of the injured plaintiff Elmer Caraballo, on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and their submission on the motion established, prima facie, that his injuries were not serious (see, Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088).   In opposition to the defendants' motion, the plaintiffs submitted, inter alia, a medical report prepared by Caraballo's treating physician and chiropractor, in which they stated that Caraballo suffers from a posterior bulge of the L4/L5 disc, and opined that he has sustained a permanent partial spinal impairment as a direct result of the underlying automobile accident.   The doctors' conclusions were based on their review of an affirmed Magnetic Resonance Imaging report.   The doctors quantified the limitations in the rotation, extension, and flexion in Caraballo's cervical and lumbar spine.   This evidence raised a triable issue of fact as to the existence of a serious injury which is for the jury to determine (see, Steuer v. DiDonna, 233 A.D.2d 494, 650 N.Y.S.2d 298;  Florez v. Diaz, 243 A.D.2d 607, 663 N.Y.S.2d 620;  Puma v. Player, 233 A.D.2d 308, 649 N.Y.S.2d 461).

MEMORANDUM BY THE COURT.

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