Si Hwa Yang v Montanez

[*1] Si Hwa Yang v Montanez 2014 NY Slip Op 50247(U) Decided on February 24, 2014 Supreme Court, Queens County McDonald, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2014
Supreme Court, Queens County

Si Hwa Yang, Plaintiff,

against

Norberto Montanez Jr. and LIBERTY PROTECTION SERVICES, INC., Defendants.



70055/2012

Robert J. McDonald, J.

The following papers numbered 1 to 24 were read on this motion by plaintiff, SI HWA YANG, for an order pursuant to CPLR 3212(b) granting plaintiff partial summary judgment on the issue of liability and setting the matter down for trial on damages only; and the cross-motion by the defendants, NORBERTO MONTANEZ JR. and LIBERTY PROTECTION SERVICES, INC., for an order pursuant to CPLR 3212, granting the defendants summary judgment and dismissing the plaintiff's complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §§ 5102 and 5104:

Papers Numbered

Notice of Motion-Affidavits-Exhibits.................1 - 6

Cross-Motion-Affidavits-Exhibits.....................7 - 12

Affirmation in Opposition to Cross-Motion...........13 - 20

Reply Affirmations(2)...............................20 - 24

This is a personal injury action in which plaintiff, SI HWA YANG, seeks to recover damages for injuries she allegedly sustained as a result of a motor vehicle accident that occurred [*2]at approximately 5:00 p.m. on June 9, 2010, on the southbound lanes of the Clearview Expressway at the exit ramp for the Long Island Expressway, Queens County, New York.

Plaintiff claims that at the time of the accident, she was proceeding southbound on the Clearview Expressway slowing down in traffic and exiting at the Long Island Expressway, when the defendants' vehicle owned by defendant LIBERTY PROTECTIONS SERVICES, INC., and operated by defendant NORBERTO MONTANEZ, JR., struck her vehicle in the rear. Plaintiff contends that as a result of the accident she sustained physical injuries including bulging and herniated discs and a torn supraspinatus tendon of he right shoulder.

Plaintiff commenced an action for damages by filing a summons and complaint on January 12, 2012. Issue was joined by service of the defendants' answer dated February 27, 2012. Plaintiff filed a note of issue on July 8, 2013, and the matter is presently on the calendar of the Trial Scheduling Part on June 18, 2014.

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY

David J. Lawrence, Esq., counsel for plaintiff, moves for an order, pursuant to CPLR 3212(b), granting partial summary judgment in favor of plaintiff on the issue of liability and setting the matter down for a trial on damages only. In support of the motion, the plaintiff submits an affirmation from counsel; a copy of the pleadings; a copy of the police accident report (MV-104); and transcripts of the examinations before trial of plaintiff and defendant.

In the accident description section of the police report, the police officer, who did not witness the accident, describes the accident, based upon the statements of the two drivers as follows:

"At t/p/o Veh #1 (plaintiff) began to slow down in traffic and was then struck from behind by Veh #2 (defendant). Both vehicles were traveling southbound in the right lane. Driver Veh#1 (plaintiff) removed by EMS to Hospital"

Plaintiff, SI HWA YANG, age 50, testified at an examination before trial on December 10, 2012. She stated that at the time of the accident she was employed as a cashier at a delicatessen in Manhattan. As a result of the accident she missed six months from [*3]work before returning in January 2011. She stated that at the time of the accident she was returning home from work and was operating a Lexus ES350 in the right lane of the southbound Clearview Expressway. She stated that the traffic was heavy and it was raining at the time. She engaged her right turn signal indicating her intent to get off at the exit for the Long Island Expressway. She slowed down in traffic and then came to a complete stop with her foot on the brake for 20 to 30 seconds at which time there was a heavy impact to the rear of her vehicle. As a result of the impact she struck her left knee on the dashboard. When the police arrived at the scene she told them her neck hurt and she needed an ambulance. She was transported from the scene by ambulance to the emergency room at Flushing Hospital. At he hospital she made complaints of pain to her left knee, neck, right shoulder and lower back. She was treated at the emergency room and discharged the same night.

The following day she sought treatment at Tristar Chiropractic on Northern Boulevard in Flushing for physical therapy, massage, chiropractic care, and acupuncture to her neck, right shoulder, left knee and lower back. She attended physical therapy for over a year until she stopped treatments in May 2011. She stated that after the accident she was confined to her bed for one and a half months and confined to the house for four or five months. She also testified that she was involved in an accident in April 2010, two months prior to the subject accident. However, she stated that she was not seriously injured in that accident and did not receive regular treatments. She stated that she still has pain in her neck, back, right shoulder, and left knee.

Defendant, Norberto Montanez, Jr. testified at an examination before trial on May 31, 2013. He stated that he is employed as a supervisor by Liberty Protection Services. On the day of the accident he was driving a company vehicle, going to have a tire repaired. He was traveling in heavy traffic southbound in the right lane of the Clearview Expressway. He stated that he was slowing down to get off at the exit for the Long Island Expressway. He first noticed the plaintiff's vehicle when it was about one car length in front of him. He stated that the plaintiff's vehicle stopped short on the exit ramp two seconds before the accident. He stated that he tried to steer out of the way, but his vehicle hydroplaned on the wet roadway and he struck the plaintiff's vehicle in the rear.

Plaintiff's counsel contends that the accident was caused solely by the negligence of the defendant in that defendant's vehicle was traveling too closely in violation of VTL § 1129 and [*4]the defendant driver failed to safely stop his vehicle prior to rear-ending the plaintiff's vehicle. Counsel asserts that the defendant admitted in his testimony that he hit the plaintiff's vehicle in the rear when the plaintiff's vehicle was stopped in traffic. Counsel contends, therefore, that the plaintiff is entitled to partial summary judgment as to liability because the defendant driver was solely responsible for causing the accident while the plaintiff, who was stopped in traffic, was free from culpable conduct. Although defendant testified that the plaintiff stopped her vehicle abruptly, counsel contends that the bare claim that a driver of the lead vehicle suddenly stopped, standing alone, is insufficient to rebut the presumption of negligence (citing Staton v Ilic,, 69 AD3d 606 [2d Dept. 2010]; Ramirez v Konstanzer, 61 AD3d 837 [2d Dept. 837}; Jumandeo v Franks, 56 AD3d 614 [2d Dept. 2008]).

In opposition to the motion, defendant's counsel, Diane Galluzzo, Esq., states that the question of whether the defendant's conduct amounts to negligence is a question of fact for the jury. Counsel claims that the defendant testified that he tried to stop when he observed that plaintiff's vehicle had stopped short, however, because of the wet roadway his vehicle struck the plaintiff's vehicle in the rear. Counsel claims that defendant presented a non-negligent explanation in that he was presented with an emergency situation because it was unforeseeable that plaintiff would stop short causing his vehicle to hydroplane on the wet road when he attempted to stop. Therefore, counsel states that the evidence presents a question of fact as to whether the emergency doctrine was applicable to the facts of this case (citing Kuci v Manhattan & Bronx Surface Transit Operating Auth., 88 NY2d 923 [1996][where some reasonable view of the evidence establishes that an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the jury]; also citing Rivera v. New York City Transit Authority, 77 NY2d 322 [1991]; Palmer v Rouse, 232 AD2d 909 [3rd Dept. 1996]).

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

"When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a [*5]reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" (Macauley v ELRAC, Inc., 6 AD3d 584 [2d Dept. 2003]). It is well established law that a rear-end collision creates a prima facie case of negligence on the part of the driver of the rearmost vehicle, requiring the operator of that vehicle to proffer an adequate, non-negligent explanation for the accident (see Williams v Spencer-Hall, 2014 NY Slip Op 346 [2d Dept. 2014]; Kertesz v Jason Transp. Corp., 102 AD3d 658 [2d Dept. 2013]; Ramos v TC Paratransit, 96 AD3d 924 [2d Dept. 2012]; Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845 [2d Dept. 2012]; Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]).

Here, plaintiff testified that her vehicle was at a complete stop on the exit ramp of the Clearview Expressway when it was suddenly struck from behind by defendants' vehicle. Thus, the plaintiff satisfied her prima facie burden of establishing entitlement to judgment as a matter of law on the issue of liability (see Robayo v Aghaabdul, 109 AD3d 892 [2d Dept. 2013]; Sayyed v Murray, 109 AD3d 464 [2d Dept. 2013]; Prosen v Mabella, 107 AD3d 870 [2d Dept. 2013]; Xian Hong Pan v Buglione, 101 AD3d 706 [2d Dept. 2012]).

Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to defendant to raise a triable issue of fact as to whether plaintiff was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Goemans v County of Suffolk,57 AD3d 478 [2d Dept. 2007]).

The courts have held that vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" (Robayo v Aghaabdul, 109 AD3d 892 [2d Dept. 2013] quoting Shamah v Richmond County Ambulance Serv., 279 AD2d 564 [2d Dept. 2001]). The defendant's assertion that the plaintiff's vehicle stopped abruptly is not a reasonable excuse for defendant's actions in striking the plaintiff's car in the rear given the traffic conditions at the time. Here, both drivers testified to heavy traffic conditions on the road. Under the circumstances, the defendant should have anticipated that the plaintiff might have to make a sudden stop (see Robayo v. Aghaabdul, supra; Sayyed v Murray, 109 AD3d 464 [2d Dept 2013]; Xian Hong Pan v Buglione, 101 AD3d 706 [2d Dept. 2012]; Taing v. Drewery, 100 AD3d 740 [2d Dept. 2012]; Staton v Ilic, 69 AD3d 606 [2d Dept. 2010]). [*6]

In addition, this Court finds that the defendant, who testified that he observed that plaintiff's vehicle was stopped in front of him but struck plaintiff's vehicle because he hydroplaned when he tried to swerve out of the way, failed to provide evidence as to a non-negligent explanation for the accident sufficient to raise a triable question of fact (see Grimm v Bailey, 105 AD3d 703 [2d Dept. 2013]; Lampkin v Chan, 68 AD3d 727 [2d Dept. 2009]; Cavitch v Mateo, 58 AD3d 592 [2d Dept. 2009]; Garner v Chevalier Transp. Corp, 58 AD3d 802 [2d Dept. 2009]; Kimyagarov v Nixon Taxi Corp., 45 AD3d 736 [2d Dept. 2007]).

In this regard the Appellate Division has held that the mere assertion that the lead vehicle came to a sudden stop while traveling in heavy traffic is insufficient to raise a triable issue of fact (see Plummer v Nourddine, 82 AD3d 1069 [2d Dept. 2011]; Staton v Ilic, 69 AD3d 606 [2d Dept. 2010]; Jumandeo v Franks, 56 AD3d 614[2d Dept. 2008]). In Plummer, supra., the Court also held that "the inference of negligence is also not rebutted by the mere assertion that defendant's vehicle was unable to stop on a wet roadway" (citing Volpe v Limoncelli, 74 AD3d 795 [2d Dept. 2010]). "Vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead (see Vehicle and Traffic Law § 1129 [a]; Faul v Reilly, 29 AD3d 626 [2d Dept. 2006][the deposition testimony of the defendant that he saw the stopped vehicle in which the plaintiff was a passenger and applied his brakes but that his vehicle nevertheless skidded into the stopped vehicle due to road conditions was insufficient to rebut the inference the he was negligent]; Shamah v Richmond County Ambulance Serv., 279 AD2d 564 [2d Dept. 2001]). Thus, drivers must maintain safe distances between their cars and the cars in front of them in light of the traffic conditions including stopped vehicles and wet roads.

Here, based upon the heavy traffic conditions on the parkway and the fact that the road was wet, defendant had a duty to maintain a safe distance based upon the traffic and the prevailing condition of the highway. The record indicates that the plaintiff did not come to a sudden unexplained stop, but rather, was stopped on the parkway due to heavy traffic conditions. In addition, the defendant's vehicle did not suffer an unavoidable skid on wet pavement, but rather, based upon the wet roadway, the defendant should have left sufficient room between his car and the cars in front. Thus, the emergency doctrine is not applicable herein because the defendant was not [*7]confronted by a sudden and unexpected circumstance which left little time for thought or deliberation. The defendant admitted that he was aware that it was raining and should have taken that into consideration in maintaining a safe distance between his vehicle and the vehicle in front of him (see Caristo v Sanzone, 96 NY2d 172 [2001]). As the evidence in the record demonstrates that the defendant failed to provide a non-negligent explanation for the collision and as no triable issues of fact have been put forth as to whether plaintiff driver may have borne comparative fault for the causation of the accident, and based on the foregoing, it is hereby

ORDERED, that the plaintiff's motion is granted, and the plaintiff, SI HWA YANG, shall have partial summary judgment on the issue of liability against the defendants NORBERTO MONTANEZ, JR., and LIBERTY PROTECTION SERVICES, INC., and the Clerk of Court is authorized to enter judgment accordingly.

DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

ON THE ISSUE OF THRESHOLD

Defendant cross-moves for an order pursuant to CPLR 3212(b), granting summary judgment dismissing the plaintiff's complaint on the ground that plaintiff did not suffer a serious injury as defined by Insurance Law § 5102.

In support of the motion, defendant submits an affirmation from counsel, Dianne Galluzzo, Esq., a copy of the pleadings; plaintiff's verified bill of particulars; a copy of the examination before trial of the plaintiff; the affirmed medical report of orthopedist, Dr. Jonathan D. Glassman; the affirmed report of neurologist Dr. Monette G. Basson, the affirmed medical report of radiologist, Dr. David A. Fisher, uncertified ambulance records, the affirmed report of plaintiff's treating physician, Dr. Chang, the unaffirmed report of chiropractor Dr. Yom, and records concerning the plaintiff's prior accident of April 19, 2010/

In her verified bill of particulars, plaintiff states that as a result of the accident she sustained, inter alia, right shoulder tear of the supraspinatus tendon, disc bulging at C3-4, C4-C5, C5-C6, and a herniated disc at C6-C7. Plaintiff states that she was confined to her bed for not less than 14 days and confined to her home for not less than 90 days. Plaintiff contends that she sustained a serious injury as defined in Insurance Law § 5102(d) in that she sustained a permanent loss of use of a body organ, member function or system; a permanent [*8]consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; and a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Dr. Jonathan D. Glassman , a board certified orthopedic surgeon retained by the defendant, examined the plaintiff on June 5, 2013. She presented with pain to her cervical spine, lower back, right shoulder and left knee. She told Dr. Glassman that she had a prior accident in April 2010 with no injuries. She also told him that she lost one year of work as a result of the instant accident. Dr. Glassman conducted objective and comparative range of motion testing and found that plaintiff had normal range of motion of the cervical spine, lumbar spine, right shoulder and left knee. His impression was sprain of the cervical spine, resolved, sprain of the right shoulder, resolved, sprain of the lumbar spine resolved, sprain of the left knee, resolved. He states that based upon the findings of his examination the plaintiff sustained no disability from the subject accident.

The plaintiff was also examined on February 28, 2013 by defendant's retained neurologist, Dr. Monette G. Basson. Plaintiff told Dr. Basson that she was out of work for six months. Upon her physical examination, Dr. Basson found that the plaintiff had no loss of range of motion of the neck and back. She states that the neurologic exam is normal. She states that in her opinion the plaintiff sustained a minor cervical sprain and lumbar sprain from which she has long since recovered.

Dr. David A. Fisher reviewed the MRI studies of the plaintiff's cervical spine, right shoulder, and left knee. He found only degenerative changes in the cervical spine with no disc herniations or fractures and no radiologic evidence of recent traumatic or causally related injury to the cervical spine. He fond that the MRI of the right shoulder was normal with no evidence of rotator cuff or labral tear and no radiologic evidence of recent traumatic or causally related injury to the right shoulder. In his opinion the MRI of the eft knee was normal with no meniscal or ligament tear. He states that there was no radiologic evidence of recent traumatic or causally related injury to the left knee.

Defendant's counsel contends that the medical reports of [*9]Drs. Basson, Glassman and Fischer, are sufficient to establish, prima facie, that the plaintiff has not sustained a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.Counsel also states that based on the records of the plaintiff's accident two months prior the injuries to her back, neck, right shoulder, and left knee were preexisting injuries and were not the result of the subject accident in June 2010. Further counsel contends that the time the plaintiff missed from work was not a result of this accident but rather was the result of the injuries she sustained in the prior accident.

In opposition, plaintiff's attorney, David J. Lawrence, Esq., submits his own affirmation as well as plaintiff's affidavit dated December 9, 2013; plaintiff's verified bill of particulars; the affirmation and treatment records of DR. Benjamin Chang; an affidavit and records of chiropractor Dr. Jong Suk Yom; The affidavit and records of physical therapist, Jun Lee, the affirmation of radiologist Dr. Richard J. Rizzuti; and the affirmation and treatment records of Dr. Alan Ng.

In her affidavit, plaintiff states that following the accident she was transported to the emergency room at Flushing Hospital where she was treated for pain to her neck, lower back, right shoulder and left knee. The following day she sought treatment with chiropractor Dr. Yom at Tri-Star Comprehensive Pain Clinic. She went for chiropractic treatments from June 10, 2010 through January 18, 2011. She also received physical therpay with Jun Lee through May 3, 2011 for pain to her neck, right shoulder left knee and lower back. She was also treated at Liberty Physical Medicine and Rehabilitation by Dr Chang who gave her injections to her right shoulder. On October 3, 2013 she was examined by Dr. Ng. After the accident she stated that she did not return to her employment for six months and was confined to her home for four or five months. She stopped her physical therapy treatments because she was terminated by no-fault and could not afford to pay for treatment out of pocket. She states that she still feels pain in her neck, lower back, right shoulder and left knee. She states that she had a prior accident in April 2010 when she did make complaints of pain to her neck, lower back, shoulders and left knee. She states she had minimal medical treatment after that accident and did not commence a lawsuit. [*10]However, she states that as a result of the subject accident her injuries became more severe than what she had been experiencing from the prior accident.

Dr. Chang initially examined the plaintiff on June 10, 2010, one day following the accident, at which time he found that she demonstrated significant loss of range of motion of the cervical spine, lumbar spine, right shoulder, left shoulder, and left knee. He recommended that the plaintiff participate on a physical therapy program he stated that her injuries to her neck, lower back, right shoulder and left knee were causally related to the June 9, 2010 accident and were permanent in nature. After her course of treatment at his office he found that the plaintiffs injuries constituted a partial, permanent impairment of the cervical and lumbar spines, right shoulder and left knee. He stated that the plaintiff stopped treating at his facility because her no-fault insurance was terminated and she could not afford to pay out of pocket. He states that the is aware of the plaintiffs April 2010 accident and based on his examination he concludes that the June 9, 2010 accident either directly caused Ms. Yang's injuries or exacerbated the injuries she sustained in the April 2010 accident.

Radiologist, Dr. Rizzuti, reviewed the MRI films of the plaintiff's right shoulder, left knee, cervical spine, and lumbar spine. He found that the plaintiff sustained a partial tear of the supraspinatus tendon, a sprain oft he anterior cruciate ligament, herniated discs at C6-C7 and disc bulges at C3-4, C4-5 and C5-6.

Dr. Alan Ng examined Ms. Yang on October 21, 2013. He states that in his opinion the injuries to her neck, left knee, and right shoulder are causally related to the June 9, 2010 accident and she sustained permanent injuries. His examination showed significant loss of range of motion of the cervical spine and right shoulder.

Initially, it is defendant's obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Where defendants' motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff [*11]to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v. Eyler, 79 NY2d 955 [1992]; Zuckerman v City of New York, 49 NY2d 557[1980]; Grossman v Wright, 268 AD2d 79 [2d Dept 2000]).

Upon review and consideration of the defendants' motion, plaintiff's affirmation in opposition, and defendants' reply thereto, this court finds that the admissible evidence submitted by the defendants fails to meet their 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. The plaintiff told both of the defendants examining physicians that she was not able to return to work for at least six months following the accident. The plaintiff's bill of particulars states that she was confined to her house for at least 90 days following her accident. She also testified at her examination before trial that she did not return to work for six months following the accident. However, both Drs. Glassman and Basson failed to relate their findings to the 90/180 category of serious injury for the period of time immediately following the subject accident. Thus, the defendants' motion papers failed to adequately address the plaintiff's claim that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Farrah v Pinos, 103 AD3d 831 [2d Dept. 2013]; Reynolds v Wai Sang Leung, 78 AD3d 919 [2d Dept. 2010]; Udochi v H & S Car Rental Inc., 76 AD3d 1011 [2d Dept. 2010]; Strilcic v Paroly, 75 AD3d 542 [2d Dept. 2010]; Bright v Moussa, 72 AD3d 859 [2d Dept. 2010]; Encarnacion v Smith, 70 AD3d 628 [2d Dept. 2010]; Negassi v Royle, 65 AD3d 1311 [2d Dept. 2009]; Alvarez v Dematas, 65 AD3d 598 [2d Dept. 209]; Smith v Quicci, 62 AD3d 858 [2d Dept. 2009]).Therefore, the evidence submitted by defendant is insufficient to demonstrate that there are no triable issues of fact with respect to the alleged permanent and significant vertigo condition(see Galindo v Kohli, 2012 NY Slip Op 30991U [2d Dept. 2012]; Pleasant v M & Lenny Taxi Corp., 94 AD3d 1072 [2d Dept. 2012]; Safer v Silbersweig, 70 AD3d 921 [2d Dept. 2010]; Menezes v Khan, 67 AD3d 654 [2nd Dept. 2009]; McFadden v Barry, 63 AD3d 1120 [2d Dept. 2009]; Staubitz v. Yaser, 41 AD3d 698 [2d Dept. 2007]; Hughes v Cai, 31 AD3d 385 [2d Dept. 2006]).

Thus, the defendant failed to make a prima facie showing of [*12]entitlement to judgment as a matter of law, that plaintiff had not had sustained serious injuries within the meaning of Insurance Law § 5102(d), tendering sufficient evidence to demonstrate the absence of any material issues of fact(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]; Reynolds v Wai Sang Leung, 78 AD3d 919 [2d Dept. 2010]).

However, this Court finds that even if the defendant had made a prima facie case, the plaintiff raised triable issues of fact by submitting the affirmed medical reports of Drs. Ng and Chang attesting to the fact that the plaintiff sustained injuries to her cervical spine, right shoulder and left knee as a result of the accident and finding that the plaintiff had significant limitations in range of motion of her cervical spine and lumbar spine both contemporaneous to the accident and in a recent examination, and concluding that the plaintiff's limitations were significant and permanent and resulted from trauma causally related to the accident (see Perl v. Meher, 18 NY3d 208 [2011]; David v Caceres, 2012 NY Slip Op 5132 [2d Dept. 2012]; Martin v Portexit Corp., 2012 NY Slip Op 5088 [1st Dept. 2012]; Ortiz v Zorbas, 62 AD3d 770 [2d Dept. 2009]; Azor v Torado,59 ADd 367 [2d Dept. 2009]). As such, the plaintiff raised a triable issues of fact as to whether she sustained a serious injury under the permanent consequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Khavosov v Castillo, 81 AD3d 903[2d Dept. 2011]; Mahmood v Vicks, 81 AD3d 606 [2d Dept. 2011]; Compass v GAE Transp., Inc., 79 AD3d 1091[2d Dept. 2010]; Evans v Pitt, 77 AD3d 611 [2d Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 743 [2d Dept. 2010]).

The plaintiff's treating doctor acknowledged and adequately addressed the significance of the fact that the plaintiff was involved in prior accidents and therefore, his conclusion that the plaintiff sustained significant limitations of a permanent nature as a result of the subject accident or exacerbated the injuries caused in the April 2010 accident are not merely speculative (see Keum Lee Jeong v Imperial Contract Cleaning, Inc., 63 AD3d 795 [2d Dept. 2009]; cf. Yun v. Barber, 63 AD3d 1140 [2d Dept. 2009]; Joseph v A & H Livery, 58 AD3d 688 [2d Dept. 2009]).

In addition, Dr. Chang adequately explained the gap in the plaintiff's treatment by stating that her no fault benefits were terminated and in addition, the plaintiff reached the point of maximum medical improvement and any further treatments would be palliative (see Abdelaziz v Fazel, 78 AD3d 1086 [2d Dept. 2010]; [*13]Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 [2d Dept. 2010]; Gaviria v Alvardo, 65 AD3d 567 [2d Dept. 2009]; Bonilla v Tortori, 62 AD3d 637 [2d Dept. 2009]).

Accordingly, for the reasons set forth above, it is hereby,

ORDERED, that the defendant's cross-motion for an order granting summary judgment dismissing the plaintiff's complaint pursuant to Insurance Law §§ 5102 and 5104 is denied.

Dated: February 24, 2014

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.