Opinion
2013-04-2
YOUNG KYU KIM, Plaintiff–Respondent, v. Robert GOMEZ, Defendant–Appellant.
Martin, Fallon & Mullé, Huntington (Michael P. Jones of counsel), for appellant. Sim Park, LLP, New York (Haesun A. Kim of counsel), for respondent.
Martin, Fallon & Mullé, Huntington (Michael P. Jones of counsel), for appellant. Sim Park, LLP, New York (Haesun A. Kim of counsel), for respondent.
MAZZARELLI, J.P., MOSKOWITZ, DeGRASSE, FEINMAN, CLARK, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered August 13, 2012, which, to the extent appealed from, denied defendant's motion for summary judgment insofar as it sought dismissal of plaintiff's claims alleging serious injuries under the “permanent consequential” and “significant” limitation of use categories of Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendant made a prima facie showing of the lack of a serious injury to the cervical and lumbar spine by submitting the affirmed report of an orthopedic surgeon finding full range of motion in both parts of the spine, and a radiologist's report finding that MRI and X-ray films taken shortly after the accident showed bulging discs attributable to diffuse multilevel degenerative disc disease and an absence of traumatic injuries ( see Paduani v. Rodriguez, 101 A.D.3d 470, 470, 955 N.Y.S.2d 48 [1st Dept. 2012];Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590–591, 920 N.Y.S.2d 24 [1st Dept. 2011] ). Defendant further argued that plaintiff had ceased treatment four months after the accident, without explanation ( Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).
In opposition, plaintiff raised a triable issue of fact by submitting the affirmed report of his treating physician who found contemporaneous and persisting limitations in range of motion, and explained his basis for concluding that the disc herniations and bulges shown on the MRI films were caused by the trauma of the accident, as opposed to degeneration ( see Perl v. Meher, 18 N.Y.3d 208, 217–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011];Mercado–Arif v. Garcia, 74 A.D.3d 446, 446–447, 902 N.Y.S.2d 72 [1st Dept. 2010] ). Plaintiff adequately addressed the gap in treatment by submitting an affidavit asserting that he stopped treatment because he could not afford to pay for it after the expiration of his no-fault benefits ( see Pindo v. Lenis, 99 A.D.3d 586, 587, 952 N.Y.S.2d 544 [1st Dept. 2012] ). Further, plaintiff's physician opined that plaintiff had failed to make a full recovery despite undergoing a comprehensive physical therapy program, which suggested that further treatment would have been only palliative ( see Ayala v. Cruz, 95 A.D.3d 699, 700, 945 N.Y.S.2d 240 [1st Dept. 2012] ).