ASSIAKOLEY v. IRVIN (1997)

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

Patience ASSIAKOLEY, Plaintiff-Appellant, v. Susie IRVIN, et al., Defendants-Respondents.

Decided: December 02, 1997

Before NARDELLI, J.P., and MAZZARELLI, ANDRIAS and COLABELLA, JJ.

Matthew A. Kaufman, for Plaintiff-Appellant. E. Richard Rimmels, Jr., Marjorie E. Bornes, for Defendants-Respondents.

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered April 16, 1996, which, inter alia, granted defendants' motion and cross motion for summary judgment dismissing the complaint on the ground that plaintiff had not established a “serious injury”, unanimously modified, on the law, to deny defendants' motion and cross motion and reinstate the complaint and otherwise affirmed, without costs.

In this personal injury action by a passenger in a taxicab, the affidavit of plaintiff's treating physician specifically indicated the extent of the limitation, and described a “permanent” spinal injury that prevents plaintiff from moving her neck “to the full range of what is normal”. Such affidavit, coupled with plaintiff's affirmations specifying the extent of her injury, was sufficient to raise a triable issue of fact as to whether plaintiff suffered a “serious injury” within the meaning of Insurance Law § 5102(d). However, given the disputed issues of fact, plaintiff's cross motion for summary judgment on the “serious injury” issue was properly denied.

MEMORANDUM DECISION.

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