Sclafani v. City of New York

22 A.D.3d 827, 803 N.Y.S.2d 182

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants City of New York, New York City Department of Transportation, and Jose Raymond Rivera appeal, and the defendants Sam Zamoshchin and Sovereign Motor Cars, Ltd., separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated June 30, 2004, which denied their respective motions for summary judgment dismissing the complaint insofar as asserted against them 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 affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

The affirmed medical reports of a neurologist and an orthopedist who examined the plaintiff approximately three years after the accident, and determined that he had no limitations or disabilities, sufficiently established a prima facie case for summary judgment in the defendants’ favor (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). However, the affirmation of the plaintiffs physician, who, on the basis of recent computerized range-of-motion testing, determined that the plaintiff had sustained restrictions in motion, was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury (see Kraemer v Henning, 237 AD2d 492 [1997]).

Accordingly, the Supreme Court properly denied the defendants’ respective motions for summary judgment. Adams, J.P., Ritter, Goldstein, Skelos and Dillon, JJ., concur.