SILVA v. VIZCARRONDO (2006)

Supreme Court, Appellate Division, First Department, New York.

Carmen SILVA, Plaintiff-Appellant, v. Rafael VIZCARRONDO, Defendant-Respondent.

Decided: July 13, 2006

ANDRIAS, J.P., SAXE, NARDELLI, CATTERSON, MALONE, JJ.

Louis A. Badolato, New York, for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Dolores M. Iannarone of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered September 26, 2005, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied, the complaint reinstated, and the matter remanded for further proceedings.

The affirmation of plaintiff's treating physician, based upon six physical examinations of plaintiff over the course of 17 months beginning shortly after the accident, included her findings of limited ranges of motion in the lumbar and cervical spine and right elbow, which she assigned specific percentages and compared to the normal range. Contrary to the motion court's conclusion, this met the minimal standard required to substantiate a claim of “serious injury” pursuant to Insurance Law § 5102(d).

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