Ventura v. Moritz

255 A.D.2d 506, 680 N.Y.S.2d 176, 1998 N.Y. App. Div. LEXIS 12661

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Floyd, J.), dated December 9, 1997, which granted the defendant’s motion for summary judgment dismissing the complaint.

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

The plaintiff met his burden, in opposition to the defendant’s motion, by submitting sufficient evidence creating a triable issue of fact with regard to his claim that he sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff submitted a report and sworn affidavit of his chiropractor who stated that, upon examination, he determined that the plaintiff sustained a partial permanent disability in his cervical spine and some loss of range of motion, and quantified those limitations. This evidence was sufficient to create a triable issue of fact with regard to the plaintiff’s allegation that he sustained a serious injury (see, Washington v Mercy Home For Children, 232 AD2d 549; Torres v Micheletti, 208 AD2d 519; Cesar v Felix, 181 AD2d 852; Bates v Peeples, 171 AD2d 635). Miller, J. P., Thompson, Pizzuto, McGinity and Luciano, JJ., concur.