Valdes v. Fang Yun Hu

307 A.D.2d 1033, 763 N.Y.S.2d 755

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 25, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiff Laura Valdes appeals (1) from a decision of the Supreme Court, Queens County (Milano, J.), dated June 21, 2001, and (2), as limited by her brief, from so much of an order of the same court dated September 20, 2001, as granted the cross motion of the defendants Yoon Kim and Hyun Kim, and the separate cross motion of the defendant Fang Yun Hu, for summary judgment dismissing the complaint insofar as asserted by the plaintiff Laura Valdes on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, the cross motions are denied, and the complaint insofar as asserted by the plaintiff Laura Valdes is reinstated; and it is further,

Ordered that one bill of costs is awarded to the plaintiff Laura Valdes.

The defendants failed to make a prima facie showing that the plaintiff Laura Valdes did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). In any event, the affidavit of Laura Valdes and the affirmation of her treating physician were sufficient to raise a triable issue of fact as to whether she sustained a medically-determined injury that curtailed her from performing her usual activities “to a great extent rather than some slight curtailment” for the statutory period of time (Licari v Elliott, 57 NY2d 230, 236 [1982]; see Frier v Teague, 288 AD2d 177, 178-179 [2001]; Marszalek v Brown, 247 AD2d 827 [1998]). Santucci, J.P., Smith, Luciano, Schmidt and Mastro, JJ., concur.