WILNER v. GAUTHIER (1999)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated July 24, 1998, as granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, with costs, the motions are denied, and the complaint is reinstated.

There exists a triable issue of fact as to whether the plaintiff sustained a “serious injury” within the meaning of Insurance law § 5102(d).   After the defendants made out a prima facie case for summary judgment, the treating physician submitted an affirmation in opposition to the defendants' motions for summary judgment which specifically noted, inter alia, that active flexion of the plaintiff's lower spine was restricted to 60 degrees.   The physician who reviewed a treatment program with the plaintiff further asserted that the plaintiff's injuries were permanent.   Therefore, the motions for summary judgment should have been denied (see, Lombardi v. Columbo, 259 A.D.2d 524, 684 N.Y.S.2d 896;  Ventura v. Moritz, 255 A.D.2d 506, 680 N.Y.S.2d 176).

MEMORANDUM BY THE COURT.