WALIA v. 88 TONG FUNG INC (2001)

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Posner, J.), dated October 4, 2000, which denied its 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) and the plaintiff cross-appeals, as limited by her brief, from so much of the same order as denied her cross motion for partial summary judgment on the issue of serious injury.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant, 88 Tong Fung, Inc., made a prima facie showing of entitlement to judgment as a matter of law by submitting affirmations from a neurologist and an orthopedist, stating that based upon their examinations of the plaintiff, the injuries she sustained in the accident were resolved (see, Turchuk v. Town of Wallkill, 255 A.D.2d 576, 681 N.Y.S.2d 72).   The plaintiff submitted two affirmations from her treating orthopedist, opining that, based upon his examinations, and the results of objective medical tests, the plaintiff suffered from permanent pain and disability, due to a crush injury to her right foot.   This evidence raised a triable issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law § 5102(d) (see, Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130).   Accordingly, the motion and cross motion were properly denied.