Lombardi v. Hochfeld

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Goldstein, J.), dated October 3, 1996, which granted the defendants’ motion pursu*712ant to CPLR 3212 for summary judgment dismissing the complaint based upon the plaintiff’s failure to sustain a serious injury as defined by Insurance Law § 5102 (d).

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

In opposition to the defendants’ motion, the plaintiff submitted an affirmation prepared by a physician which was based, inter alia, on the examination he performed on the plaintiff approximately 17 months after the occurrence. The affirmation provided objective evidence of the extent or degree of the limitation in the plaintiff’s cervical spine and left shoulder and thus raised an issue of fact (see, CPLR 3212 [b]) as to whether she sustained "a significant limitation of use of a body function or system” (Insurance Law § 5102 [d]; see, Beckett v Conte, 176 AD2d 774). Ritter, J. P., Sullivan, Altman and McGinity, JJ., concur.