Gomez v. New York City Transit Authority

291 A.D.2d 431, 737 N.Y.S.2d 539, 2002 N.Y. App. Div. LEXIS 1627

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2002
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bruno, J.), dated March 13, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) and denied, as academic, her cross motion, inter alia, to compel further discovery.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for a determination of the plaintiffs cross motion on the merits.

In opposition to the defendant’s prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury (see, Insurance Law § 5102 [d]) by submitting admissible evidence indicating that she sustained objectively-measured, specifically-quantified limitations of motion in her lumbar spine (see, Wilner v Gauthier, 264 AD2d 732; McKinney v Corby, 261 AD2d 454).

In light of our determination, the plaintiffs cross motion, inter alia, to compel further discovery is no longer academic. Accordingly, the matter is remitted to the Supreme Court for a determination of the cross motion on the merits. S. Miller, J.P., O’Brien, McGinity, Schmidt and Townes, JJ., concur.