MARTIN v. PIETRZAK (2000)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Underwood, Jr., J.), entered May 18, 1999, which, upon the granting of the defendant's motion made at the close of the plaintiffs' case for judgment as a matter of law, is in favor of the defendant and against them dismissing the complaint.

ORDERED that the judgment is reversed, on the law, the motion is denied, the complaint is reinstated, and a new trial is granted, with costs to abide the event.

Through the testimony of her treating chiropractor, the injured plaintiff, Regina Martin (hereinafter the plaintiff), presented evidence that she suffered from a “vertebral subluxation complex” in her cervical spine as a result of injuries sustained in the accident in question.   The plaintiff's injuries allegedly resulted in permanent significant range of motion limitations which were objectively measured using an arthroidal protractor.   Under these circumstances, a question of fact exists as to whether the plaintiff suffered a serious injury as defined by Insurance Law § 5102(d) (see, Spain v. New York City Tr. Auth., 265 A.D.2d 319, 696 N.Y.S.2d 71;  Walsh v. Kings Plaza Replacement Serv., 239 A.D.2d 408, 658 N.Y.S.2d 345;  Rut v. Grigonis, 214 A.D.2d 721, 625 N.Y.S.2d 633;  Greenman v. Poll, 197 A.D.2d 502, 602 N.Y.S.2d 410).   The trial court therefore erred in granting the defendant's motion for judgment as a matter of law.

MEMORANDUM BY THE COURT.