Pareti v. Giglietta

221 A.D.2d 607, 634 N.Y.S.2d 201, 1995 N.Y. App. Div. LEXIS 12452

Opinion

—In a negligence action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (DeMaro, J.), dated August 19, 1994, which granted the motion of the defendants Patricia J. Smolenski and Marian E. Smolenski for summary judgment dismissing the complaint insofar as it is asserted against them, based on the plaintiffs’ failure to establish serious injury as defined by Insurance Law § 5102 (d).

Ordered that the order is reversed on the law, with costs, the motion is denied, and the complaint is reinstated insofar as it is asserted against the defendants Patricia J. Smolenski and Marian E. Smolenski.

In opposition to the motion for summary judgment, the injured plaintiff, Maryann Pareti submitted an affirmation dated July 20, 1994, prepared by Dr. Donald I. Goldman which was based on an examination of the injured plaintiff he had performed one week earlier. The affirmation indicated that as a result of the accident, the injured plaintiff had a 20% restriction of motion of her cervical spine and that the injury to the cervical spine "should be considered permanent”. 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” (cf., Beckett v Conte, 176 AD2d 774). Mangano, P. J., Balletta, Miller and Santucci, JJ., concur.