Tai Ho Kang v. Young Sun Cho

• Decision Date: 29 June 2010
• Citation: 904 N.Y.S.2d 743,74 A.D.3d 1328
• Parties: TAI HO KANG, appellant, v. YOUNG SUN CHO, respondent. (And a related action).
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 743

74 A.D.3d 1328

TAI HO KANG, appellant,

v. YOUNG SUN CHO, respondent.(And a related action).

Supreme Court, Appellate Division, Second Department, New York.

June 29, 2010.

Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for appellant.

Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (Barbara L. Hall of counsel), for respondent.

PETER B. SKELOS, J.P., HOWARD MILLER, RANDALL T. ENG, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (LaMarca, J.), dated June 22, 2009, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.

The defendant met his prima facie burden of showing that the plaintiff in that action 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

In opposition, the plaintiff raised a triable issue of fact based on the affirmation of Dr. Michael Trimba, the plaintiff's treating physician. Based on Dr. Trimba's contemporaneous and recent examinations of the plaintiff, which revealed significant limitations in the cervical and lumbar regions of the plaintiff's spine, and his review of the affirmed reports of magnetic resonance imaging scans of those regions of the plaintiff's spine, which revealed bulging discs at C5-6, C6-7, L4-5, and L5-S1, Dr. Trimba concluded that the injuries to the cervical and lumbar regions of the plaintiff's spine, and range-of-motion limitations observed during his examinations, were permanent and causally related to the subject accident. This submission alone was sufficient to raise a triable issue of fact as to whether he sustained a serious injury to the cervical and/or lumbar regions of his spine under the permanent consequential limitation of use and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident ( see Barry v. Valerio, 72 A.D.3d 996, 902 N.Y.S.2d 97; Williams v. Clark, 54 A.D.3d 942, 864 N.Y.S.2d 493; Casey v. Mas Transp., Inc., 48 A.D.3d 610, 852 N.Y.S.2d 373; Green v. Nara Car & Limo, Inc., 42 A.D.3d 430, 839 N.Y.S.2d 543; Francovig v. Senekis Cab Corp., 41 A.D.3d 643, 644-645, 838 N.Y.S.2d 635; Acosta v. Rubin, 2 A.D.3d 657, 768 N.Y.S.2d 642).

Contrary to the defendant's assertion, the plaintiff adequately explained any lengthy gap in his treatment in his...