Consolidated appeal from (1) an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered May 15, 2006, deemed an appeal from a judgment entered July 7, 2006 (see CPLR 5501 [c]), and (2) an order of the same court entered October 5, 2006. The judgment, entered pursuant to the May 15, 2006 order granting defendant's motion for summary judgment, dismissed the complaint. The October 5, 2006 order, insofar as appealed from, upon granting plaintiff's motion to renew, adhered to the court's previous determination granting defendant's motion for summary judgment.

Judgment reversed without costs, order entered May 15, 2006 vacated and defendant's motion for summary judgment denied.

Appeal from order entered October 5, 2006, insofar as the order adhered to the prior determination, dismissed as academic.

In this action to recover for personal injuries which plaintiff allegedly sustained in a motor vehicle accident on March 9, 2003, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). By order entered May 15, 2006, the court below granted defendant's motion, and plaintiff appeals therefrom. A judgment was subsequently entered pursuant to the May 15, 2006 order dismissing the complaint. The appeal from the order of May 15, 2006 is deemed to be from the judgment (see CPLR 5501 [c]). By order entered October 5, 2006, the court granted plaintiff's motion to renew, and, upon renewal, adhered to the previous determination granting defendant's motion for summary judgment. Plaintiff also appeals from the October 5, 2006 order insofar as it adhered to the prior determination granting defendant's motion for summary judgment.

Defendant made a prima facie showing through competent medical evidence that plaintiff [*2]did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Defendant submitted, among other things, affirmed reports of orthopedic and neurological examinations, setting forth the results of range of motion testing and comparing plaintiff's ranges of motion to normal ranges. The examining orthopedist found no limitations in any range of motion. The examining neurologist found two limitations in motion of plaintiff's lumbar spine but stated that these were "voluntary," as there was no objective evidence of any limitation, such as spasm, and no objective abnormalities (see Constantine v Serafin, 16 AD3d 1145 [2005]). Defendant thereby shifted the burden to plaintiff to raise a triable issue of fact as to whether plaintiff sustained a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]).

Plaintiff's proof in opposition was sufficient to raise a triable issue of fact (see e.g. Grullon v Perez, 41 AD3d 783 [2007]; Balanta v Stanlaine Taxi Corp., 307 AD2d 1017 [2003]). Plaintiff submitted, among other things, an affirmed report of a recent examination which quantified limitations in plaintiff's ranges of motion based upon objective testing, compared plaintiff's ranges to normal ranges of motion, and concluded that plaintiff's spinal injuries and range of motion limitations were permanent and causally related to the subject accident. Plaintiff also submitted an affirmed report of the results of an examination performed shortly after the subject accident, showing range of motion limitations in his spine based upon objective findings, and concluding that plaintiff's limitations were causally related to the subject accident. In addition, plaintiff submitted an affirmed report of an MRI, taken shortly after the accident, showing disc herniation and bulging. Furthermore, plaintiff adequately explained his gap in treatment as he stated that he stopped visiting a doctor because his no-fault benefits were discontinued, but continued to do at-home treatment and exercises (see e.g. Francovig v Senekis Cab Corp., 41 AD3d 643 [2007]; Black v Robinson, 305 AD2d 438 [2003]; Ahmed v Khan, 5 Misc 3d 129[A], 2004 NY Slip Op 51269[U] [App Term, 2d & 11th Jud Dists 2004]).
Accordingly, we reverse the judgment, vacate the order entered May 15, 2006 granting defendant's motion for summary judgment and deny said motion.

In view of the foregoing, the appeal from the order entered October 5, 2006, insofar as the order adhered to the prior determination, is dismissed as academic (One Beacon Ins. Co., v French Inst. Alliance Francais NYC, 50 AD3d 388 [2008]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: July 10, 2008