DANIEL BARHAK, plf-ap, v. L. ALMANZAR-CESPEDES, def-res

8847. DANIEL BARHAK, plf-ap, v. L. ALMANZAR-CESPEDES, def-res — Elana Sharara, Great Neck, for ap — Backer, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for res — Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 20, 2011, which, insofar as appealed from, granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law §5102(d), unanimously modified, on the law, the motion denied to the extent it sought dismissal of plaintiff's claim that he suffered "permanent consequential" and "significant limitation" injuries to his cervical spine, and otherwise affirmed, without costs.

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8847. DANIEL BARHAK, plf-ap, v. L. ALMANZAR-CESPEDES, def-res — Elana Sharara, Great Neck, for ap — Backer, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for res — Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 20, 2011, which, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law §5102(d), unanimously modified, on the law, the motion denied to the extent it sought dismissal of plaintiff’s claim that he suffered “permanent consequential” and “significant limitation” injuries to his cervical spine, and otherwise affirmed, without costs.

Plaintiff alleges that as a result of a rear-end motor vehicle accident that occurred in August 2009, he sustained permanent injuries to his cervical spine, lumbar spine, left elbow, and left shoulder. Defendant met his prima facie burden by submitting, among other things, the affirmation of an orthopedic surgeon who found upon recent examination that each body part exhibited full range of motion (see Spencer v. Golden Eagle, Inc., 82 AD3d 589 [1st Dept 2011]; DeLeon v. Ross, 44 AD3d 545 [1st Dept 2007]). As to plaintiff’s claimed cervical spine injury, defendant proffered the affirmation of a radiologist who, upon reviewing an MRI taken after the accident, opined that plaintiff had extensive degenerative disc disease and desiccation which predated the accident and the disc herniations seen at multiple levels had a degenerative etiology (see Porter v. Bajana, 82 AD3d 488 [1st Dept 2011]).

DANIEL BARHAK, plf-ap, v. L. ALMANZAR-CESPEDES, def-res

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