Jones v. Hampton

The defendant failed to meet his prima facie burden of showing that the plaintiff did not sustain a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant submitted an affirmed medical report from an examining orthopedic surgeon, who noted the existence of a significant limitation in lumbar flexion (see Karvay v Gueli, 77 AD3d 625, 626 [2010]). Although the examining physician nonetheless concluded that the lumbosacral region of the plaintiffs spine was normal, he failed to adequately explain that conclusion in light of his finding of a significant limitation (cf. Gonzales v Fiallo, 47 AD3d 760 [2008]). Additionally, although the defendant demonstrated, prima facie, that the plaintiffs alleged injuries were not caused by the accident, in opposition, the plaintiff raised a triable issue of fact in that regard (see Jaramillo v Lobo, 32 AD3d 417, 418 [2006]). 1066 Accordingly, the defendant’s renewed motion for summary judgment dismissing the complaint should have been denied. Skelos, J.E, Angiolillo, Belen, Lott and Roman, JJ., concur.