McLinden v. Schoeck

261 A.D.2d 925, 689 N.Y.S.2d 916, 1999 N.Y. App. Div. LEXIS 5007

Opinion

—Order and judgment unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint on the ground that Anne H. McLinden (plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). From our review of the record, we conclude that the affidavits of the treating physician and chiropractor submitted by plaintiffs in opposition to defendant’s motion were sufficient to raise a triable issue of fact whether plaintiff sustained a serious injury (see, Marszalek v Brown, 247 AD2d 827; Hawkins v Forshee, 245 AD2d 1091; Denner v Mizgala, 245 AD2d 1069). (Appeal from Order and Judgment of Supreme Court, Ontario County, Scudder, J. — Summary Judgment.) Present — Green, J. P., Lawton, Wisner and Callahan, JJ.