ASSAEL v. MARTH (2002)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCaffrey, J.), entered December 6, 2001, which granted the separate motions of the defendants for summary judgment dismissing the complaint insofar as asserted against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs, the motions are denied, and the complaint is reinstated.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   However, the plaintiff's admissible evidence, an affirmation from a medical expert discussing, inter alia, the magnetic resonance imaging films he reviewed which showed cervical herniations, and the range of motion testing he performed during a recent examination, which indicated specific limitations in the range of motion of the plaintiff's cervical spine, was sufficient to raise a triable issue of fact (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Kauderer v. Penta, 261 A.D.2d 365, 689 N.Y.S.2d 190).   Accordingly, the Supreme Court erred in granting the defendants' separate motions for summary judgment, and the complaint is reinstated.