Gonzalez v. Brayley

199 A.D.2d 1013, 605 N.Y.S.2d 585, 1993 N.Y. App. Div. LEXIS 12621

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1993
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment. Plaintiffs, Marilu and Jose L. Gonzalez, each established a triable issue of fact regarding the threshold question of serious injury under section 5102 (d) of the Insurance Law. The affidavit of Marilu’s physician indicating that Marilu suffered from post-traumatic prepatellar bursitis requiring a prolonged period of nonsteroidal anti-inflammatory medication, that she was unable to kneel, and that the bursitis may require surgery, presented an issue of fact whether there was a significant limitation of use of a body function or system as a result of the accident (see, Insurance Law § 5102 [d]; Spezia v De Marco, 173 AD2d 462; Akin v Estate of Patti, 149 AD2d 964). The affidavit of Jose’s physician disclosing that Jose had sustained three fractures of the cartilage of his nose was likewise sufficient to present an issue of fact (see, Insurance Law § 5102 [d]; Redmond v Schultz, 152 AD2d 823). (Appeal from Order of Supreme Court, Monroe County, Rosenbloom, J. —Summary Judgment.) Present—Denman, P. J., Callahan, Pine, Doerr and Boehm, JJ.