Vilchez v Hood (2007 NY Slip Op 50591(U))

Vilchez v Hood

2007 NY Slip Op 50591(U) [15 Misc 3d 1112(A)]

Decided on March 28, 2007

Supreme Court, Richmond County

McMahon, 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This opinion is uncorrected and will not be published in the printed Official Reports.

On May 28, 2005 the plaintiff Carolina Vilchez allegedly sustained injuries when a motor vehicle operated by defendant Charles R. Hood and owned by defendant Hot Leasing, Inc. collided with her automobile at the intersection of Victory Boulevard and Benwick Avenue, Staten Island, New York. Plaintiff Melissa Maltez was a passenger in the vehicle operated by plaintiff Vilchez. In January, 2005, the plaintiffs commenced this action and issue was joined by service of an answer by the defendants. The defendants now move for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

The defendants made a prima facie showing of their entitlement to summary judgment (see, Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]; Chou v. Welsh, 15 AD3d 622 [2d

Dept. 2005]). In opposition, the plaintiffs submitted, inter alia, affirmations of their chiropractor specifying the decreased range of motion in their lumbar and cervical spines as evidenced by objective findings. The chiropractor also asserted that both plaintiffs' injuries were permanent and causally related to the subject motor vehicle accident. This evidence is sufficient to raise a triable issue of fact precluding the granting of summary judgment on the issue of serious injury (see, Toure v. Avis Rent A Sys., supra; Clervoix v. Edwards, 10 AD3d 626 [2d Dept. 2004]; [*2]Mauro v. Gold Star Limo Corp., 8 AD3d 352 [2d Dept. 2004]; Fabiano v. Kirkorian, 306 AD2d 373 [2d Dept. 2003]).

The argument raised for the first time in the defendants' reply papers regarding gap in treatment is not properly before the court (see, Angwin v. SRF Partnership, 28 AD3d 593 [2d Dept. 2006]; Rengifo v. City of New York, 7 AD3d 773 [2d Dept. 2004]; Calderone v. Harrel, 237 AD2d 318 [2d Dept. 1997]). In any event, in his affirmations, the plaintiffs' chiropractor set forth that the plaintiffs' "injuries and limitations were permanent, and that additional therapy would not be beneficial". Thus, the plaintiffs' expert adequately explained

the gap in treatment (see, Pommells v. Perez, 4 NY3d 566 [2005]; Shpakovskaya v. Etienne, 23 AD3d 368 [2d Dept. 2005]).

Additionally, plaintiff Carolina Vilchez raised a triable issue of fact as to whether the scar on her right forehead and eyebrow, which she sustained as a result of the subject accident, constituted a "significant disfigurement" in that a reasonable person viewing the face in its altered state would regard the condition as unattractive, objectionable, or the object of pity and scorn (see, Tugman v. PJC Sanitation Service, Inc., 23 AD3d 457 [2d Dept. 2005]; Sirmans v. Mannach, 300 AD2d 465 [2d Dept. 2002]).

ORDERED, that the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.