TESTA v. ALLEN (2001)

Supreme Court erred in granting defendants' motion for summary judgment dismissing the amended complaint and third-party defendant's cross motion for summary judgment dismissing the third-party complaint on the ground that plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102(d).   Even assuming, arguendo, that defendants and third-party defendant met their initial burden, we conclude that plaintiff raised a triable issue of fact precluding summary judgment.   Plaintiff submitted the affirmation of her treating physician for four years following the motor vehicle accident, who opined that plaintiff suffered a cervical sprain with subluxation of C4/C5, which he concluded is a permanent consequential limitation of use of a body member.   He found that plaintiff suffers from spasm and restricted movement in her neck, which constitute objective evidence of injury.   Thus, we conclude that the affirmation of plaintiff's expert was sufficient to raise a triable issue of fact whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) (see, Dixon v. La Morticella, 286 A.D.2d 951, 730 N.Y.S.2d 389;  Mangano v. Sherman, 273 A.D.2d 836, 709 N.Y.S.2d 293;   McGuirk v. Vedder, 271 A.D.2d 731, 732, 706 N.Y.S.2d 485;  Rodriguez v. Duggan, 266 A.D.2d 859, 697 N.Y.S.2d 803).

Order unanimously reversed on the law without costs, motion and cross motion denied and amended complaint and third-party complaint reinstated.

MEMORANDUM: