PAULA v. Paula Ernesto, et al., appellants.

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

Jenny PAULA, respondent, v. Javier NATALA, defendant, Paula Ernesto, et al., appellants.

Decided: April 28, 2009

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, HOWARD MILLER, THOMAS A. DICKERSON, and CHERYL E. CHAMBERS, JJ. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Timothy M. Sullivan of counsel), for appellants. Harmon, Linder, & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), for respondent. Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for defendant Javier Natala.

In an action to recover damages for personal injuries, the defendants Paula Ernesto and Alberto Tavarez appeal from an order of the Supreme Court, Kings County (Lewis, J.), dated September 12, 2008, 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.

Although the defendants established their prima facie entitlement to judgment as a matter of law (see Luckey v. Bauch, 17 A.D.3d 411, 792 N.Y.S.2d 624;  Sims v. Megaris, 15 A.D.3d 468, 790 N.Y.S.2d 487;  Check v. Gacevk, 14 A.D.3d 586, 789 N.Y.S.2d 218), the plaintiff submitted sufficient evidence in opposition to raise a triable issue of fact as to whether she sustained a serious injury.   The plaintiff's objective medical evidence included affirmations from the physician who treated her in the months following the accident, as well as from the physician who examined her in response to the motion for summary judgment.   The physicians, inter alia, quantified their findings of reduced ranges of motion in the plaintiff's cervical spine and lumbar spine (compare Caracci v. Miller, 34 A.D.3d 515, 823 N.Y.S.2d 681).   Moreover, the plaintiff adequately explained the two-year gap from the time her medical treatments had stopped to the time she was re-examined for purposes of the motion for summary judgment (see Gibson v. Tordoya, 44 A.D.3d 1000, 844 N.Y.S.2d 431;  Black v. Robinson, 305 A.D.2d 438, 439-440, 759 N.Y.S.2d 741).

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