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Luis Alchundia v. Sean S. Harry and Angela M. Harry

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 6, 2011

LUIS ALCHUNDIA,
PLAINTIFF, -AND-
ANA LABORDE,
APPELLANT,
v.
SEAN S. HARRY AND ANGELA M. HARRY,
RESPONDENTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 20, 2009, deemed from a judgment of the same court entered September 28, 2009 (see CPLR 5501 [c]).

Alchundia v Harry

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 6, 2011

PRESENT: GOLIA, J.P., PESCE and RIOS, JJ

The judgment, entered pursuant to so much of the March 20, 2009 order as granted the branches of defendants' motion for summary judgment seeking to dismiss plaintiff Ana Laborde's claims under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d), dismissed those claims.

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branches of defendants' motion for summary judgment seeking to dismiss plaintiff Ana Laborde's claims under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d) is vacated, and said branches of defendants' motion for summary judgment are denied.

In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, insofar as is relevant to the appeal, the complaint states, as a second cause of action, that plaintiff Ana Laborde suffered a serious injury when defendants' vehicle came into contact with the vehicle in which she was a passenger. In their answer, defendants denied liability and asserted various affirmative defenses. Defendants subsequently moved for summary judgment dismissing the complaint on the ground that plaintiffs did not suffer a serious injury as defined under Insurance Law § 5102 (d). The Civil Court granted defendants' motion to the extent of, among other things, dismissing the second cause of action with respect to Laborde's claim of injuries under the permanent consequential limitation of use and significant limitation of use categories. After Laborde appealed from the order, a judgment was entered dismissing her cause of action with respect to the permanent consequential limitation of use and significant limitation of use categories. The appeal is deemed to be from the judgment (see CPLR 5501 [c]).

Defendants met their prima facie burden of showing that Laborde did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, Laborde raised a triable issue of fact as to whether she had sustained a serious injury to the cervical or lumbar regions of her spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d) as a result of the subject accident (see Casiano v Zedan, 66 AD3d 730 [2009]; Gaviria v Alvardo, 65 AD3d 567 [2009]; Gutierrez v Yonkers Contr. Co., 61 AD3d 823 [2009]; Jules v Barbecho, 55 AD3d 548 [2008]). The submissions by Laborde's osteopath established that Laborde had significant limitations in the ranges of motion of the cervical and lumbar regions of her spine. The osteopath determined that the limitations had been caused by the subject accident. Additionally, shortly after the accident, Laborde underwent MRIs of her cervical and lumbar spine. Her radiologist read the cervical spine MRI and reported the existence of posterior disc herniations, as well as reversal of the cervical lordosis, which, he stated, was indicative of reflex muscle spasm. Laborde also proffered the affirmed report of her examining neurologist, who had performed a recent examination. The neurologist noted his agreement with the radiologist's interpretation of the MRI and opined that there was objective evidence of impairment, including significant restriction of mobility. The neurologist further indicated that Laborde had sustained permanent consequential limitation of use of her cervical and lumbosacral spine.

Accordingly, the branches of defendants' motion for summary judgment seeking to dismiss plaintiff Ana Laborde's claims under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d) should have been denied.

Golia, J.P., Pesce and Rios, JJ., concur.

Decision Date: April 06, 2011

20110406

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