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In an action to recover damages for personal injuries, the plaintiff appeals from an order

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County, dated August 20, 2008, which granted 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).

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

The Court said that the defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. In opposition, the plaintiff raised a triable issue of fact as to whether he sustained a serious spinal injury to his cervical and/or lumbar regions of his spine under the permanent consequential limitation and/or significant limitation of use categories of Insurance Law § 5102 (d) as a result of the subject accident.

The plaintiff raised a triable issue of fact based on the submissions of the plaintiff’s treating physicians, established in his initial examination report dated May 9, 2003, that the plaintiff had significant limitations in the ranges of motion of the cervical and lumbar regions of his spine injury. These contemporaneous significant limitations were deemed by the physician to have been caused by the subject accident. Shortly after the accident, the plaintiff underwent magnetic resonance imaging (hereinafter MRI) scans of the cervical and lumbar regions of his spine, which were read by the doctor, his examining radiologist. The cervical MRI showed posterior disc herniations at C3-4 and C4-5 with impingement on the anterior aspect of the spinal canal and the left intervertebral foramen at C3-4. The lumbar MRI showed posterior disc herniations at L4-5 and L5-S1 with impingement on the anterior aspect of the spinal canal, the neural foramina bilaterally at L4-5, and the nerve roots bilaterally at L5-S1. In his report of his recent examination of the plaintiff and his personal review of the MRI films, the plaintiff’s examining neurologist, noted his agreement with the other physician’s interpretation of the plaintiff’s MRIs, and opined that the plaintiff had significant limitations in the range of motion of the cervical and lumbar regions of his spine, and that these limitations were permanent and causally related to the subject accident. The neurologist further opined that the plaintiff sustained permanent consequential limitations of use of the cervical and lumbar regions of his spine injury, and that the limitations noted were significant.

While it is true that the defendant’s radiologist opined that the MRI scans taken of the cervical and lumbar regions of the plaintiff’s spine revealed only bulging discs which were degenerative in nature, the neurologist who reviewed the same films, observed herniated discs, which he deemed to be caused by the subject accident. Thus, the conflicting medical opinions regarding the nature and etiology of the spinal injuries to the cervical and lumbar regions of the plaintiff’s spine were sufficient to raise a triable issue of fact.

Contrary to the defendant’s assertions, the plaintiff adequately explained the lengthy gap in his treatment. The plaintiff admitted in his affidavit that he treated for only seven months after the subject accident, but stated that he stopped because his no-fault benefits terminated and he could not thereafter afford to pay for further treatments out of his own pocket. Moreover, the physician stated in his affirmation that the plaintiff stopped treating, inter alia, because he had reached his maximum medical improvement and any further treatment would essentially is palliative in nature.

Accordingly, the Court held that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is denied.

Under the “no-fault” law, in order to maintain an action for personal injury, a plaintiff must establish that a “serious injury” has been sustained. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. In order to do this, you will need the help of a Queens Spine Injury Attorney and Queens Personal Injury Attorney at Stephen Bilkis and Associates. Without the help of these attorneys you may stand loss in your case. Call us.

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