Perez v. Einhorn

123 A.D.2d 752, 507 N.Y.S.2d 413, 1986 N.Y. App. Div. LEXIS 60894

Opinion

In an automobile negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Durante, J.), dated May 27, 1985, which denied his motion for summary judgment dismissing the plaintiff’s complaint.

Ordered that the order is affirmed, with costs.

The defendant moved for summary judgment on the ground that the plaintiff had not sustained a serious injury within the meaning of Insurance Law former § 671 (4) (now § 5102 [d]). The plaintiff’s papers submitted in opposition to the motion, including an affidavit of his treating physician, indicating a limitation of his back movement to 70% of normal, were sufficient to raise a triable issue of fact and defeat the motion (see, Lopez v Senatore, 65 NY2d 1017). Mangano, J. P., Thompson, Brown and Rubin, JJ., concur.