Camilo v. Forlini

304 A.D.2d 386, 756 N.Y.S.2d 751, 2003 N.Y. App. Div. LEXIS 3875

Opinion

Order, Supreme Court, New York County (Milton Tingling, J.), entered May 31, 2002, which denied defendants’ motion and plaintiff’s cross motion for summary judgment, unanimously affirmed, without costs.

Plaintiff’s cross motion was properly denied in light of factual questions precluding summary adjudication of the threshold issue as to whether plaintiff sustained serious injury within the meaning of Insurance Law § 5102 (d) (see Maldonado v DePalo, 277 AD2d 21, 22 [2000]). Plaintiff demonstrated a triable issue of fact with an affidavit that included her medical expert’s “designation of a numeric percentage of a plaintiff’s loss of range of motion” (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). We have considered the remaining arguments of both sides for summary judgment and find them unavailing. Concur — Tom, J.P., Ellerin, Lerner and Marlow, JJ.