Pollas v. Jackson

2 A.D.3d 700, 769 N.Y.S.2d 796

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Donovan, J), entered December 20, 2002, which granted the defendant’s motion for summary judgment dismissing the complaint 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.

Assuming, without deciding, that the evidence proffered by the defendant established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), the evidence submitted by the plaintiff in opposition demonstrated that as a consequence of the accident, she suffered two torn menisci of the right knee. This prevented her from engaging in activities in which she had previously participated. This evidence raised a triable issue of fact as to whether she sustained a “significant limitation of use of a body function or system” (Insurance Law § 5102 [d]; see D’Amato v Stomboli, 264 AD2d 800 [1999]). Accordingly, the motion should have been denied. Ritter, J.P., Smith, Friedmann, H. Miller and Crane, JJ., concur.