Livai v. Amoroso

239 A.D.2d 565, 658 N.Y.S.2d 973, 1997 N.Y. App. Div. LEXIS 5710

Opinion

In a negligence action to recover damages for personal injuries, the third-party defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated May 9, 1996, as denied his motion for summary judgment dismissing the third-party complaint based on the plaintiff’s failure to establish serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, with costs.

In opposition to the motion for summary judgment, the plaintiff submitted an affirmation of her treating physician, dated February 29, 1996, which was based on a recent examination. The affirmation indicated that as a result of the accident, the plaintiff had a 20% restriction of motion of her cervical spine caused by cervical osteoarthritis, and a continued impression of cervical radiculopathy, and that these injuries are considered permanent. Summary judgment was properly denied as the affirmation was sufficient to raise a triable issue of fact as to whether the plaintiff sustained "significant limitation of use of a body function or system” (Lopez v Senatore, 65 NY2d 1017, 1019; Schwartz v New York City Hous. Auth., 229 AD2d 481). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur..