Clervoix v. Edwards

10 A.D.3d 626, 781 N.Y.S.2d 690

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 13, 2004
• Status: Published

Opinion

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Loughlin, J.), dated June 30, 2003, as granted the defendant’s motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury through the affirmed medical reports of the examining neurologist and orthopedist (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, the plaintiff submitted an affidavit from his treating chiropractor specifying the decreased range of motion in his lumbar and cervical spines as evidenced by objective findings, along with evidence of herniated discs and disc bulges as confirmed by magnetic resonance imaging tests. The chiropractor also asserted that the plaintiffs injuries were permanent and causally related to the subject motor vehicle accident. This evidence was sufficient to raise a triable issue of fact (see Toure v Avis Rent A Car Sys., supra; Acosta v Rubin, 2 AD3d 657 [2003]).

Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint. Altman, J.P., Goldstein, Schmidt, Cozier and Skelos, JJ., concur.