Kerzhner v. N.Y. Ubu Taxi Corp.

17 A.D.3d 410, 792 N.Y.S.2d 622, 2005 N.Y. App. Div. LEXIS 3804

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Douglass, J.), dated March 8, 2004, which granted the plaintiffs motion for leave to reargue the defendants’ prior motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and, upon reargument, vacated the prior order and denied the defendants’ motion.

Ordered that the order is affirmed, with costs.

The affirmation of the defendants’ examining physician stating that the results of the plaintiffs neurological testing were normal, and that the plaintiff had a full range of motion in his cervical and lumbar spines, was sufficient to establish a prima facie case that the plaintiff did not sustain a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). However, the affirmation of the plaintiffs examining physician was sufficient to raise a triable issue of fact. The physician stated that he examined the MRI films showing the existence of bulging discs, and that he had measured limitations, which he quantified in his report, in the plaintiffs range of motion using a goniometer.

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment on reargument. Adams, J.P., Cozier, Ritter and Skelos, JJ., concur.