BITICI v. NEW YORK CITY TRANSIT AUTHORITY (1997)

Order, Supreme Court, New York County (Robert Lippmann, J.), entered February 19, 1997, which granted defendants' motion for summary judgment dismissing plaintiffs' complaint for failure to meet the “serious injury” threshold required by Insurance Law § 5102(d), unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.

 Plaintiff Zoya Bitici was injured when the car she was driving was struck by a city bus driven by defendant Mencher.   The sole reason stated in the court's order granting summary judgment was that “it was not until 2 1/2 years after the accident that any problem was found with the plaintiff medically.”   Our review of the record on the summary judgment motion reveals that it was error to grant the motion.   There was conflicting, competent medical evidence regarding the nature and extent of plaintiff's injuries, thus raising a question of fact that cannot be resolved on summary judgment (see, e.g., Cassagnol v. Williamsburg Plaza Taxi, 234 A.D.2d 208, 651 N.Y.S.2d 518).   It is within the province of the fact finder, not the summary judgment court, to determine the weight to be given to the examination and findings of plaintiff's doctor (id.).

 With respect to the nature of the medical evidence submitted by plaintiff, her claims do not consist of her subjective complaints alone or a doctor's conclusory or speculative statements, either of which would be insufficient to demonstrate a prima facie case of serious injury to defeat defendants' motion (Velez v. Cohan, 203 A.D.2d 156, 157, 610 N.Y.S.2d 257;  Braham v. U-Haul Co., 195 A.D.2d 277, 599 N.Y.S.2d 593);  her submissions include the findings made by her doctor based on an examination, x-ray and detailed observations (Parker v. Defontaine-Stratton, 231 A.D.2d 412, 647 N.Y.S.2d 189;  Cesar v. Felix, 181 A.D.2d 852, 853, 581 N.Y.S.2d 411).  Moreover, a doctor's finding of range of motion limitations comparable to plaintiff's have been held to meet the threshold test of serious injury and withstand summary judgment (see, e.g., Cassagnol v. Williamsburg Plaza Taxi, supra;  Parker v. Defontaine-Stratton, supra;  see also, Lopez v. Senatore, 65 N.Y.2d 1017, 1020, 494 N.Y.S.2d 101, 484 N.E.2d 130).  Accordingly, plaintiff satisfied her burden in opposing summary judgment by establishing the requisite prima facie case of serious physical injury, and it was error to grant summary judgment.

MEMORANDUM DECISION.