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Paula v. Natala

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 28, 2009

JENNY PAULA, RESPONDENT,
v.
JAVIER NATALA, DEFENDANT, PAULA ERNESTO, ET AL., APPELLANTS.

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).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, HOWARD MILLER, THOMAS A. DICKERSON & CHERYL E. CHAMBERS, JJ.

(Index No. 26151/06)

DECISION & ORDER

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 AD3d 411; Sims v Megaris, 15 AD3d 468; Check v Gacevk, 14 AD3d 586), 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 AD3d 515). 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 AD3d 1000; Black v Robinson, 305 AD2d 438, 439-440).

MASTRO, J.P., FISHER, MILLER, DICKERSON and CHAMBERS, JJ., concur.

20090428

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