Puma v. Player

233 A.D.2d 308, 649 N.Y.S.2d 461, 1996 N.Y. App. Div. LEXIS 11629

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1996
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brucia, J.), entered November 15, 1995, which granted the separate motions of the defendant Gerard Murphy and the defendants Tammy Player and Linda Player for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the defendants’ motions are denied, and the complaint is reinstated.

The defendants moved for summary judgment contending that there was no "serious injury” within the meaning of Insurance Law § 5102 (d). They established, prima facie, that the plaintiff’s injuries were not serious (see, Licari v Elliott, 57 NY2d 230; cf., Lopez v Senatore, 65 NY2d 1017). In opposition to the defendants’ motions, the plaintiff submitted an affidavit from her treating physician stating that she suffered a traumatically induced disc bulge at C5-C6, which was the cause of the plaintiff’s pain and the reason why the range of motion of her cervical spine was 50% normal. The treating physician’s conclusion was based on his review of a Magnetic Resonance Imaging (MRI) report, which was also submitted. Furthermore, the treating physician concluded that the plaintiff’s condition would be permanent. The plaintiff’s evidence raised a triable issue of fact as to the existence of a serious injury, which is for the jury to determine (see, Mariaca-Olmos v Mizrhy, 226 AD2d 437; Flanagan v Hoeg, 212 AD2d 756; Jackson v United Parcel Serv., 204 AD2d 605; see also, Brown v Stark, 205 AD2d 725). O’Brien, J. P., Pizzuto, Goldstein and Luciano, JJ., concur.