OSADA v. TAUB (1999)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Durante, J.), dated January 7, 1998, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Contrary to the defendants' contention, the Supreme Court properly denied their motion for summary judgment.   The defendants failed to meet their burden of submitting evidence establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).   The defendants submitted an affirmed report by the plaintiff's treating chiropractor (see, Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692), setting forth the injuries and course of treatment, and identifying a substantial limitation of movement.   Based on these findings, the chiropractor expressed the opinion that there was a significant limitation of use of a described body function or system.   The report and deposition testimony submitted by the defendants failed to establish that the plaintiff's injuries were not serious within the meaning of the Insurance Law (see, Lopez v. Senatore, 65 N.Y.2d 1017, 1020, 494 N.Y.S.2d 101, 484 N.E.2d 130;  Mendola v. Demetres, 212 A.D.2d 515, 622 N.Y.S.2d 309).

MEMORANDUM BY THE COURT.