Steuer v. DiDonna

233 A.D.2d 494, 650 N.Y.S.2d 298, 1996 N.Y. App. Div. LEXIS 12653

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 1996
• Status: Published

Opinion

—In. an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated December 6, 1995, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff has come forward with sufficient evidence to overcome the defendants’ motion for summary judgment by demonstrating that she sustained a "serious injury” within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff submitted an affidavit from her chiropractor who stated that, based upon objective orthopedic, neurological, and chiropractic testing, in addition to the plaintiff’s history of symptomology, it was his opinion that the plaintiff suffers from a permanent partial disability in the function of her cervical and lumbar spine. In his affidavit, the chiropractor specified the degree of limitation in the range of motion of the plaintiff’s cervical and lumbar spine. Notwithstanding the report submitted by the defendant’s examining physician affirmed by him to be true, the plaintiff’s evidence was sufficient to create a triable issue of fact with regard to her allegation that she sustained a serious injury (see, Rut v Grigonis, 214 AD2d 721; Barrett v Howland, 202 AD2d 383; Bates v Peeples, 171 AD2d 635; Swenning v Wankel, 140 AD2d 428). Miller, J. P., Ritter, Sullivan, Friedmann and Krausman, JJ., concur.