Castillo v Cinquina

Castillo v Cinquina 2011 NY Slip Op 05562 Decided on June 28, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 28, 2011
Andrias, J.P., Friedman, Renwick, DeGrasse, Abdus-Salaam, JJ.
5452 305991/08

[*1]Melissa Castillo, Plaintiff-Appellant,

v

Anthony Cinquina, Defendant-Respondent.



 
W. Matthew Sakkas, New York, for appellant.
Cohen, Kuhn & Associates, New York (Robert D. Wilkins of
counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about July 7, 2010, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint based on the failure to establish a "permanent consequential limitation" or "significant limitation" within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion denied.

Defendant made a prima facie showing of entitlement to judgment as a matter of law. Defendant submitted the affirmed report of an orthopedic surgeon who, after conducting an independent examination of plaintiff, found that she had full range of motion in her neck and back and concluded that her
injuries were resolved (see Dennis v New York City Tr. Auth.,
84 AD3d 579 [2011]).

In opposition, plaintiff raised triable issues of fact. Plaintiff submitted an affidavit of her treating chiropractor who, based on testing performed both recently and contemporaneous with plaintiff's accident, found diminished range of motion in the cervical and lumbar spine and concluded that such limitations were caused by the accident (see id.). The chiropractor's opinion was supported by objective medical evidence, namely, MRI reports indicating that plaintiff had bulging discs in the cervical and lumbar spine (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 28, 2011

CLERK