Estevez v. Manos

264 A.D.2d 754, 695 N.Y.S.2d 374, 1999 N.Y. App. Div. LEXIS 9160

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 20, 1999
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiff Maria Estevez appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated July 20, 1998, as granted that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted by her.

Ordered that the order is reversed insofar as appealed from, with costs, and the branch of the motion which was to dismiss the complaint insofar as asserted by the appellant is denied.

While the medical evidence submitted by the defendant in support of his motion for summary judgment established a prima facie case that the appellant did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), the affidavit sworn to by osteopath Lisa Marx, which the appellant submitted in opposition to the motion, provided objective evidence of the extent and degree of the limitation of movement in the appellant’s cervical spine and its duration (see, Beckett v Conte, 176 AD2d 774). The appellant thus raised a triable issue of fact (see, CPLR 3212 [b]) as to whether she sustained a serious injury.

Under the circumstances, the defendant, a nonappealing party, is precluded from challenging so much of the order as denied that branch of his motion which was to dismiss the complaint insofar as asserted by the plaintiff Jorge Estevez (see, Hecht v City of New York, 60 NY2d 57). Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.