Mazo v. Wolofsky

Jul 26, 2004
Versions:9 A.D.3d 452
779 N.Y.S.2d 921
2004 N.Y. App. Div. LEXIS 10018

*453In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated November 12, 2003, which denied his motion for summary judgment dismissing the complaint 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 costs.

Although the defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]), the affirmation of the plaintiffs physician submitted in opposition to the motion for summary judgment was sufficient to raise a triable issue of fact as to the seriousness of the plaintiffs injuries. The physician set forth the tests he used to measure the plaintiffs range of motion, quantified the results of those tests, and concluded therefrom that the plaintiff sustained a decrease in certain aspects of his cervical and lumbar range of motion of 20% or more.

Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. Florio, J.E, Krausman, Townes, Mastro and Fisher, JJ., concur.