Carucci v. Tzimopoulos

238 A.D.2d 459, 657 N.Y.S.2d 921, 1997 N.Y. App. Div. LEXIS 4032

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 1997
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (McCarty, J.), dated June 19, 1996, which denied their motion for summary judgment dismissing the complaint based upon the plaintiff’s failure to sustain a serious injury as defined by Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

Although the defendants made out a prima facie case that the plaintiff had not sustained a serious injury as defined by Insurance Law § 5102 (d), the evidence submitted by the plaintiff in opposition to the motion, consisting, inter alia, of Dr. Raphael Cilento’s medical affidavit, raised a triable issue of fact (see, CPLR 3212 [b]) as to whether the plaintiff met the statutory threshold. The affidavit provided objective evidence of the extent or degree of the limitation of movement in the plaintiff’s cervical and lumbar spines and thus raised a triable issue of fact as to whether the plaintiff suffered a "significant limitation of use of a body function or system” (Insurance Law § 5102 [d]; see, Beckett v Conte, 176 AD2d 774). Bracken, J. P., Santucci, Friedmann and Goldstein, JJ., concur.