Baker v. Catania

In a negligence action to recover damages for personal injuries, the plaintiff John E. Baker, Jr., appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), entered September 15, 1988, which granted the defendants’ motion for summary judgment.

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

The plaintiff John E. Baker, Jr., was injured when an automobile he was operating was struck by an automobile owned by the defendant James V. Quintigliano and operated by the defendant Constance M. Catania. An affidavit submitted by Dr. Michael Brooks, who examined that plaintiff at the defendants’ request, states that his "range of motion of the cervical spine was approximately 75% of normal” and "his motor power is perhaps less than 50% of normal”. Whether those limitations constitute serious injury as defined in Insurance Law § 5102 (d), is an issue of fact sufficient to defeat the defendants’ motion for summary judgment (see, Swenning v Wankel, 140 AD2d 428). Brown, J. P., Sullivan, Harwood and Rosenblatt, JJ., concur.