At page 1094 Determining triable issues of serious injury under insurance law15 citing casesIn an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated December 16,…
- Chul Koo Jeong v. Denike, 137 A.D.3d 1189 (N.Y. App. Div. 2d Dep't 2016).publishedThus, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury under the significant limitation of use and/or the permanent consequential limitation of use category of Insurance Law § 5102 (d) as a result of…
- Bykova v. Sisters Trans, Inc., 99 A.D.3d 654 (N.Y. App. Div. 2d Dep't 2012).published However, in opposition, the plaintiff provided competent medical evidence raising triable issues of fact as to whether her alleged injuries constituted serious injuries under the significant limitation of use category of Insurance Law § 51…
- Ragabear v. Lallmahamad, 90 A.D.3d 883 (N.Y. App. Div. 2d Dep't 2011).publishedIn opposition to the defendants’ prima facie showings that she did not sustain a serious injury to her right knee under those categories, Charran submitted competent medical evidence raising a triable issue of fact as to whether the allege…
- Jeong v. Callaghan, 90 A.D.3d 722 (N.Y. App. Div. 2d Dep't 2011).publishedHowever, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical and lumbosacral regions of her daughter’s spine constituted serious injuries unde…
- McKenna v. Williams, 89 A.D.3d 698 (N.Y. App. Div. 2d Dep't 2011).publishedHowever, in opposition, the plaintiff provided competent medical evidence raising a triable issue of fact as to whether those alleged injuries constituted serious injuries under the permanent consequential limitation of use and/or signific…
- Tudor v. Yetman, 88 A.D.3d 870 (N.Y. App. Div. 2d Dep't 2011).publishedHowever, in opposition, the plaintiff provided competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical region of her spine constituted a serious injury under the permanent consequential…
- Cestari v. Mayo Servs., Inc., 88 A.D.3d 847 (N.Y. App. Div. 2d Dep't 2011).publishedContrary to the defendants’ contention, upon renewal, the plaintiff provided competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical and lumbar regions of her spine constituted serious…
- Khaimov v. Fan, 87 A.D.3d 1055 (N.Y. App. Div. 2d Dep't 2011).publishedHowever, in opposition, the plaintiff provided competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical region of his spine constituted a serious injury within the meaning of Insurance L…
- Munoz v. Irizarri, 87 A.D.3d 1056 (N.Y. App. Div. 2d Dep't 2011).publishedHowever, in opposition, the plaintiff provided competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical and lumbosacral regions of her spine constituted serious injuries within the meani…
- Chery v. Castello, 87 A.D.3d 520 (N.Y. App. Div. 2d Dep't 2011).publishedThe plaintiff provided competent medical evidence establishing that the alleged injuries to the lumbar region of her spine constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of us…
Show 4 more citing cases
- Awadh v. Moronta, 86 A.D.3d 524 (N.Y. App. Div. 2011).publishedHowever, in opposition, the plaintiff provided competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbar region of his spine constituted a serious injury under the permanent consequential l…
- Midiri v. McQueen, 85 A.D.3d 985 (N.Y. App. Div. 2d Dep't 2011).publishedHowever, in opposition, the plaintiff provided evidence raising a triable issue of fact as to whether the injuries to the cervical region of her spine constituted a serious injury under the permanent consequential limitation of use and/or…
- Messiana v. Drivas, 85 A.D.3d 744 (N.Y. App. Div. 2d Dep't 2011).publishedHowever, in opposition, the appellant submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbosacral and cervical regions of his spine constituted serious injuries under the perma…
- Mazil v. Quinones, 84 A.D.3d 893 (N.Y. App. Div. 2d Dep't 2011).publishedThe plaintiffs’ submissions raised a triable issue of fact as to whether the injured plaintiff sustained a serious injury to the lumbar region of her spine under the permanent consequential limitation of use and/or significant limitation o…
At page 1095 ficient to raise a triable issue of fact as to whether, as a result of the subject accident, Dixon sustained a serious injury to the cervical and lumbar…1 citing case
- Kanarad v. Setter, 87 A.D.3d 714 (N.Y. App. Div. 2d Dep't 2011).publishedDr. Wright concluded, based on his contemporaneous and most recent examinations of the plaintiff, which revealed significant limitations in the cervical and lumbar regions of the plaintiff’s spine, and his review of the plaintiff’s magneti…
v.
Dudley E. Fuller
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated December 16, 2009, which granted the motion of the defendant Dudley E. Fuller for summary judgment dismissing the complaint insofar as asserted against him on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the motion of the defendant Dudley E. Fuller for summary judgment dismissing the complaint insofar as asserted against him is denied.
The defendant Dudley E. Fuller (hereinafter the defendant) met his prima facie burden of showing that neither plaintiff sustained 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 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). However, in opposition, the plaintiffs raised triable issues of fact through the affirmation of Dr. Leo Batash, their treating physician. As to the plaintiff Nadine M. Stone, Dr. Batash concluded, based on his contemporaneous and most recent examinations of her, which revealed significant limitations in the lumbar regions of her spine and right knee, that her injuries were permanent and her range-of-motion limitations were significant. He opined that she sustained a permanent consequential limitation of use of those areas as a result of the subject accident. His findings concerning Stone were sufficient to raise a triable issue of fact as to whether, as a result of the subject accident, she sustained a serious injury to the lumbar region of her spine and/or right knee under the permanent consequential limitation of use and/or the significant limitation of use categories of Insurance Law § 5102 (d) (see Gussack v McCoy, 72 AD3d 644 [2010]; Casiano v Zedan, 66 AD3d 730 [2009]; Ortiz v Zorbas, 62 AD3d 770 [2009]).
As to the plaintiff Ackeem A. Dixon, Dr. Batash concluded, based on his contemporaneous and most recent examinations of him, which revealed significant limitations in the cervical and lumbar regions of his spine, that his injuries were permanent and his range-of-motion limitations were significant. He opined that Dixon sustained a permanent consequential limitation of use of the cervical and lumbar regions of his spine as a result of the subject accident. His findings concerning Dixon were suf[*1095]ficient to raise a triable issue of fact as to whether, as a result of the subject accident, Dixon sustained a serious injury to the cervical and lumbar regions of his spine under the permanent consequential limitation of use and/or the significant limitation of use categories of Insurance Law § 5102 (d) (see Gussack v McCoy, 72 AD3d 644 [2010]; Casiano v Zedan, 66 AD3d 730 [2009]; Ortiz v Zorbas, 62 AD3d 770 [2009]).
Contrary to the defendant’s contention, Dr. Batash’s affirmation was sufficient to raise a triable issue of fact. While portions of Dr. Batash’s affirmation had to be disregarded because they recited unsworn findings of other doctors (see Gussack v McCoy, 72 AD3d at 644-645; Casiano v Zedan, 66 AD3d 730 [2009]; McNeil v New York City Tr. Auth., 60 AD3d 1018 [2009]), Dr. Batash found, on the basis of his own physical examinations of the plaintiffs, made contemporaneously with the subject accident and at the time of his most recent examinations of the plaintiffs, that both plaintiffs had significantly decreased ranges of motions in the regions noted above. Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.