RODRIGUEZ v. DUGGAN (1999)

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

Maria RODRIGUEZ and Juan Rodriguez, Plaintiffs-Respondents, v. Michelle DUGGAN and Robin E. Duggan, Defendants-Appellants.

Decided: November 12, 1999

PRESENT: PINE, J.P., WISNER, PIGOTT, JR., HURLBUTT and SCUDDER, JJ.

Hilary C. Banker, Buffalo, for defendants-appellants. Helen Kaney Dempsey, Buffalo, for plaintiff-respondent Maria Rodriguez.

Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint. Defendants met their initial burden of establishing that Maria Rodriguez (plaintiff) did not sustain a serious physical injury within the meaning of Insurance Law § 5102(d). Plaintiffs raised an issue of fact, however, by the affidavit of plaintiff's chiropractor, who stated that he measured significant restrictions in the flexion, extension and rotation of plaintiff's cervical spine 11 months after the accident and opined that those restrictions are permanent (see, Nathanson v. David, 244 A.D.2d 930, 665 N.Y.S.2d 148).

Order unanimously affirmed without costs.

MEMORANDUM:

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