Pesce v. Tillotson

Appellate Division of the Supreme Court of New York

Pesce v. Tillotson

7 A.D.3d 597, 776 N.Y.S.2d 493

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 10, 2004

StatusPublished

This text of 7 A.D.3d 597 (Pesce v. Tillotson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pesce v. Tillotson, 7 A.D.3d 597, 776 N.Y.S.2d 493 (N.Y. Ct. App. 2004).

Pincite

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated January 15, 2003, which granted the motion of the defendant Stephanie S. Tillotson for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff did not sustain a serious injury within the meaning of 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 asserted against the defendant Stephanie S. Tillotson.

The defendant Stephanie S. Tillotson made a prima facie showing that the plaintiff did not sustain a serious injury within [598]*598the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, the plaintiff submitted the affirmation of an orthopedist and an affirmed Magnetic Resonance Imaging (hereinafter MRI) report taken less than one month after the accident. The orthopedist, after reviewing, inter alia, the MRI report and conducting a physical examination of the plaintiff that included objective range of motion testing, opined that the plaintiff sustained trauma-induced C5/6 central disc herniation, radiculopathy, and quantified limitations of her range of motion (see Negrete v Hernandez, 2 AD3d 511 [2003]; Puma v Player, 233 AD2d 308 [1996]). This evidence was sufficient to raise a triable issue of fact (see Toure v Avis Rent A Car Sys., supra).

Accordingly, the motion for summary judgment should have been denied. Altman, J.P., Krausman, Goldstein and Mastro, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated January 15, 2003, which granted the motion of the defendant Stephanie S. Tillotson for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff did not sustain a serious injury within the meaning of 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 asserted against the defendant Stephanie S. Tillotson.

The defendant Stephanie S. Tillotson made a prima facie showing that the plaintiff did not sustain a serious injury within [598]*598the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, the plaintiff submitted the affirmation of an orthopedist and an affirmed Magnetic Resonance Imaging (hereinafter MRI) report taken less than one month after the accident. The orthopedist, after reviewing, inter alia, the MRI report and conducting a physical examination of the plaintiff that included objective range of motion testing, opined that the plaintiff sustained trauma-induced C5/6 central disc herniation, radiculopathy, and quantified limitations of her range of motion (see Negrete v Hernandez, 2 AD3d 511 [2003]; Puma v Player, 233 AD2d 308 [1996]). This evidence was sufficient to raise a triable issue of fact (see Toure v Avis Rent A Car Sys., supra).

Accordingly, the motion for summary judgment should have been denied. Altman, J.P., Krausman, Goldstein and Mastro, JJ., concur.

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Bluebook (online)

7 A.D.3d 597, 776 N.Y.S.2d 493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pesce-v-tillotson-nyappdiv-2004.

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