Shtesl v. Kokoros
Decision Date | 12 November 2008 |
Docket Number | 2007-06950. |
Citation | 867 N.Y.S.2d 492,2008 NY Slip Op 08726,56 A.D.3d 544 |
Parties | MOSHE SHTESL et al., Appellants, v. GEORGE KOKOROS et al., Respondents. |
Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the plaintiff Moshe Shtesl payable by the defendants appearing separately and filing separate briefs.
The Supreme Court properly concluded that the submissions in support of the summary judgment motion of the defendant George Kokoros, in which the defendants Elaine Finkel, Seung S. Shin, and Young A. Pak joined, met the prima facie burden of showing that the plaintiff Moshe Shtesl (hereinafter Shtesl) did not sustain 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, 350-351 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).
However, the Supreme Court erred in concluding that the papers submitted by Shtesl in opposition were insufficient to raise a triable issue of fact on the issue of whether Shtesl sustained a serious injury to his cervical spine within the meaning of Insurance Law § 5102 (d). In opposing the motion, Shtesl principally relied on the affirmation of his treating physician Alexander Berenbilt. Berenbilt's affirmation raised a triable issue of fact as to whether Shtesl sustained a serious injury to his cervical spine under the permanent consequential or significant limitation of use categories of Insurance Law § 5102 (d) as a result of the subject accident. Berenbilt's affirmation revealed significant range-of-motion limitations in Shtesl's cervical spine, based on both contemporaneous and recent examinations. Also, Berenbilt properly relied on the affirmed magnetic resonance imaging report of Shtesl's cervical spine, dated May 29, 2002, which revealed the existence of herniated discs at C4-5, C5-6, and C6-7. It was Berenbilt's opinion that such...
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