McVEY v. COLLINS (1999)

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated September 29, 1998, as denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff Carol A. McVey did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

There is an issue of fact as to whether the plaintiff Carol A. McVey sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident giving rise to this action.   In opposition to the defendant's motion for summary judgment, McVey submitted the affidavit of the chiropractor who treated her for the injuries that she sustained as a result of the accident.   The chiropractor described the nature of the treatment, and stated that upon recent examination he determined that McVey sustained a partial, permanent disability in her cervical spine and quantified that limitation.   This evidence was sufficient to create a triable issue of fact with regard to the allegation of serious injury (see, Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130;  Ventura v. Moritz, 255 A.D.2d 506, 680 N.Y.S.2d 176;  Washington v. Mercy Home for Children, 232 A.D.2d 549, 648 N.Y.S.2d 956).

MEMORANDUM BY THE COURT.