Rossini v. Weber

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Loughlin, J.), dated October 22, 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.

Contrary to the determination of the Supreme Court, the defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The report of the defendant’s examining physician indicated the tests that he performed in concluding that the plaintiff’s cervical range of motion was not restricted in any way.

However, the affidavit of the plaintiff’s treating physician submitted in opposition to the motion was sufficient to raise a triable issue of fact. Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment. Ritter, J.P., H. Miller, Schmidt, Crane and Skelos, JJ., concur.