Espinoza v. Dinicola

8 A.D.3d 225, 777 N.Y.S.2d 313, 2004 N.Y. App. Div. LEXIS 7439

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants Mary Dinicola and Carlos R. Mejia separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Ruditzky, J.), dated October 1, 2003, as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). However, the affirmations of the plaintiff’s physicians submitted in opposition to the defendants’ motions were sufficient to raise a triable issue of fact. Her radiologist reported observing bulging discs in her lumbar spine and a torn meniscus in her left knee, and her treating physician found a 25% impairment, which finding he supported by setting forth the range-of-motion testing that he performed and quantifying the results.

Accordingly, the Supreme Court properly denied the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against them. Santucci, J.E, Smith, Luciano and Adams, JJ., concur.