CORDERO v. Patricia Sammon, et al., appellants.

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

Edwin CORDERO, respondent, v. FORD CREDIT TITLING TRUST INSURANCE CENTER, defendant, Patricia Sammon, et al., appellants.

Decided: April 24, 2007

ROBERT W. SCHMIDT, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, JOSEPH COVELLO, and DANIEL D. ANGIOLILLO, JJ. James P. Nunemaker, Jr., Uniondale, N.Y. (Linda Meisler of counsel), for appellants. Silverstein & Stern, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Keith D. Silverstein and Brian J. Isaac] of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants Patricia Sammon and Brian Sammon appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated July 14, 2006, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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 Patricia Sammon and Brian Sammon made a prima facie 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, 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).   However, in opposition to the motion, the plaintiff raised a triable issue of fact by submitting, inter alia, the affirmed report of a neurologist quantifying the decreased range of motion in his cervical and lumbar spines based upon a recent examination, and affirmed magnetic resonance imaging test reports finding multiple disc herniations and bulges (see Santiago v. Rodriguez, 38 A.D.3d 639, 832 N.Y.S.2d 589;  Lim v. Tiburzi, 36 A.D.3d 671, 829 N.Y.S.2d 145;   Gonzalez v. Baik, 36 A.D.3d 854, 830 N.Y.S.2d 224;  Holley v. Salsa, Inc., 35 A.D.3d 814, 828 N.Y.S.2d 437).

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