Jackson v. United Parcel Service

204 A.D.2d 605, 612 N.Y.S.2d 186, 1994 N.Y. App. Div. LEXIS 5545

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1994
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated February 10, 1992, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendants’ motion is denied.

The plaintiff met her burden of establishing a prima facie case of serious injury within the meaning of Insurance Law § 5102 (d) (see, Licari v Elliott, 57 NY2d 230; cf., Lopez v Senatore, 65 NY2d 1017). In opposition to the defendants’ motion for summary judgment, the plaintiff submitted her own affidavit and excerpts from her examination before trial in which she complained of persistent pain and restriction of movement. In addition, the plaintiff submitted sworn affidavits from her treating physicians stating that she suffered a disc herniation at L5/S1, and that this condition would be permanent. The evidence submitted by the defendants was contradictory, creating issues of fact for a jury to determine (see, Morsellino v Frankel, 161 AD2d 748). Bracken, J. P., Miller, Copertino, Santucci and Altman, JJ., concur.