VITALE v. LEV EXPRESS CAB CORP (2000)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Milano, J.), dated March 19, 1999, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants initially submitted evidence sufficient to establish a prima facie case that the plaintiff did not sustain a serious injury as a matter of law (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Flanagan v. Hoeg, 212 A.D.2d 756, 624 N.Y.S.2d 853).   In response, the plaintiff submitted an affirmation by Dr. Roman Tabakman, based in part on a recent examination, which indicated the degree to which the plaintiff's movement was restricted in her cervical and lumbar spine, and noted that those restrictions had been objectively measured using a range of motion test.   The affirmation also stated that the restrictions were permanent in nature.   The affirmation was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a “significant limitation of use of a body function or system” (Insurance Law § 5102[d];  see also, Meyer v. Gallardo, 260 A.D.2d 556, 688 N.Y.S.2d 624;  Lombardi v. Columbo, 259 A.D.2d 524, 684 N.Y.S.2d 896;  Yahya v. Schwartz, 251 A.D.2d 498, 674 N.Y.S.2d 430;  Cenat v. Cutler, 251 A.D.2d 362, 672 N.Y.S.2d 812;  Pareti v. Giglietta, 221 A.D.2d 607, 634 N.Y.S.2d 201;  Meireles v. Lakeland Cent. School Dist., 208 A.D.2d 508, 617 N.Y.S.2d 42;  cf., Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233).

The defendants' remaining contentions are without merit.

MEMORANDUM BY THE COURT.