Walker v Walker-Lebron

[*1] Walker v Walker-Lebron 2009 NY Slip Op 50792(U) [23 Misc 3d 134(A)] Decided on April 27, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570019/08.

Jamalle Walker, Plaintiff-Appellant,

against

Kesha Walker-Lebron, Ramon L. Lebron, Matthew Wallace and Michelle Artis, Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered May 29, 2007, which granted the motion of defendants Wallace and Artis for summary judgment dismissing the complaint as against them.

Per Curiam.

Order (Nelida Malave-Gonzalez, J.), entered May 29, 2007, reversed, without costs, motion denied, and complaint reinstated as against defendants Wallace and Artis.

The affidavit of plaintiff's chiropractor, setting forth positive test results and limitations of motion in plaintiff's cervical and lumbar spine, was sufficient to raise a triable issue as to whether plaintiff sustained a "serious injury" (Insurance Law §5102[d]). These quantified findings, made during a physical examination in 2007, were compared with test results and limitations measured during an examination shortly after the 2001 motor vehicle accident. The chiropractor also referred to an MRI taken 10 weeks after the accident revealing lumbar disc herniation and bulge, and opined that plaintiff's quantified limitations were permanent and caused by the accident (see Britt v Goodspeed Tr., 41 AD3d 179 [2007]; Garner v Tong, 27 AD3d 401 [2006]). Since the MRI report and other unsworn reports were reviewed by plaintiff's chiropractor in reaching his conclusions, they were properly before the court (see Pommells v Perez, 4 NY3d 566, 577, n 5 [2005]; Navedo v Jaime, 32 AD3d 788 [2006]). Plaintiff satisfactorily explained the cessation of treatment when insurance benefits ended, and his chiropractor noted that treatment was only palliative, as the injuries were permanent (see Pommells v Perez, 4 NY3d at 576; Wadford v Gruz, 35 AD3d 258 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: April 27, 2009