Serbia v Mudge
2012 NY Slip Op 04228 [95 AD3d 786]
May 31, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 27, 2012

Carmen Serbia, Appellant,
Arthur Mudge et al., Respondents.

[*1] Mitchell Dranow, Sea Cliff, for appellant.

Law Office of Lori D. Fishman, Tarrytown (Michael J. Latini of counsel), for respondents.

Order, Supreme Court, Bronx County (Lizbeth GonzÁlez, J.), entered March 9, 2011, which granted defendants' motion for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102 (d), unanimously reversed, on the law, without costs, and the motion denied.

Defendants made a prima facie showing of entitlement to summary judgment as to plaintiff's claims of "significant limitation of use" of her lumbar spine, by submitting expert medical reports finding normal ranges of motion, as well as the report of a radiologist who opined that the herniated disc shown in an MRI of the plaintiff was not acute or caused by the accident (Insurance Law § 5102 [d]).

The preclusion of plaintiff's expert neurologist's and radiologist's reports was an improvident exercise of discretion, since defendants relied on plaintiff's neurologist's report, were equally untimely in serving their radiologist's report and thus cannot show prejudice by the lateness of the exchange (see Martin v Triborough Bridge & Tunnel Auth., 73 AD3d 481, 482 [2010], lv denied 15 NY3d 713 [2010]; Browne v Smith, 65 AD3d 996 [2009]).

In opposition, plaintiff submitted competent medical evidence raising an issue of fact as to her lumbar spine injuries, including the report of the radiologist who submitted a nonconclusory opinion sufficiently rebutting defendants' expert opinion regarding the cause of plaintiff's herniated disc, and of her treating physician, who opined, after a full examination soon after the accident, that her injuries were causally related to the accident (see Ramos v Rodriguez, 93 AD3d 473 [2012]).

Plaintiff adequately explained the gap in treatment by asserting in her affidavit that she [*2]stopped receiving treatment for her injuries when her no-fault insurance benefits were cut off, and she lacked income to continue treatment (see Browne v Covington, 82 AD3d 406 [2011]). Concur—Tom, J.P., Andrias, Saxe, Moskowitz and Acosta, JJ.