Waseca Cook, respondent, v. Robert Day, appellant. (2005)

In an action to recover damages for personal injuries, the defendant Robert Day appeals from an order of the Supreme Court, Nassau County (Galasso, J.), entered July 21, 2003, which denied his motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Waseca Cook on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

Although the defendant Robert Day (hereinafter the appellant) made a prima facie showing that the plaintiff Waseca Cook (hereinafter the respondent) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176), the affidavit of the respondent's chiropractor submitted in opposition to the motion was sufficient to raise a triable issue of fact.   The respondent's chiropractor stated that upon his examination of her, he found diminished deep tendon reflexes in the right upper and lower extremities, and diminished sensation along the L5 and S1 dermatomal patterns in the right lower extremity.   In addition, he found that the ranges of motion of the cervical spine and lumbar spine were restricted in all directions, and quantified those restrictions.

Accordingly, the Supreme Court properly denied the appellant's motion for summary judgment.