HOLLEY v. SALSA INC

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

Karen HOLLEY, respondent, v. SALSA, INC., et al., appellants.

Decided: December 26, 2006

ROBERT W. SCHMIDT, J.P., STEPHEN G. CRANE, REINALDO E. RIVERA, PETER B. SKELOS, and ROBERT J. LUNN, JJ. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel), for appellants. Elliot Ifraimoff & Associates, P.C., Forest Hills, N.Y. (David E. Waterbury of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated February 15, 2006, 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 made a prima facie showing that the plaintiff did not sustain a serious injury through the affirmed medical reports of their examining neurologist and orthopedic surgeon (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, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition, the plaintiff submitted an affirmation from her treating physician specifying the decreased range of motion in her lumbar and cervical spines as evidenced by objective findings made shortly after the subject accident, as well as on a recent examination, along with evidence of herniated discs and disc bulges as confirmed by his reading of magnetic resonance imaging films.   The plaintiff's treating physician also asserted that the plaintiff's injuries were permanent and causally related to the subject motor vehicle accident.   This evidence was sufficient to raise a triable issue of fact (see Toure v. Avis Rent A Car Sys., supra;  Clervoix v. Edwards, 10 A.D.3d 626, 627, 781 N.Y.S.2d 690;  Acosta v. Rubin, 2 A.D.3d 657, 659, 768 N.Y.S.2d 642).

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