DeJesus-Martinez v Singh

[*1] DeJesus-Martinez v Singh 2007 NY Slip Op 50256(U) [14 Misc 3d 137(A)] Decided on February 16, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 16, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., DAVIS, SCHOENFELD, JJ
570451/06.

William E. DeJesus-Martinez and Maria Nolasco, Plaintiffs-Respondents,

against

Piara Singh, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered May 31, 2006, which denied his motion for summary judgment dismissing the complaint.

PER CURIAM:

Order (Ben R. Barbato, J.), entered May 31, 2006, affirmed, without costs.

The affirmation of the injured plaintiff's treating physician raised a triable issue as to whether plaintiff sustained a serious injury (see Insurance Law §5102[d]). The physician correlated significant quantified range of motion limitations in plaintiff's upper and lower back to herniated discs and nerve injury revealed in MRI, EMG and other objective tests, and opined that plaintiff's injuries were caused by the subject accident and are permanent (see Garner v. Tong, 27 AD3d 401 [2006]; Brooks v. Zises, 16 AD3d 221 [2005]). The alleged "gap" in treatment was reasonably explained (see Pommells v. Perez, 4 NY3d 566, 574 [2005]).

While sustaining the action upon the aforementioned grounds, we note that the evidence does not disclose the existence of a triable issue as to whether, by reason of injuries sustained in the alleged accident, plaintiff was prevented from performing substantially all of the material acts constituting his usual and customary activities for at least 90 of the first 180 days following the accident.
This constitutes the decision and order of the court.
Decision Date: February 16, 2007