DIXON v. MORTICELLA

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Supreme Court, Appellate Division, Fourth Department, New York.

Clarence M. DIXON and Dolores D. Dixon, Plaintiffs-Appellants, v. Paul A. La MORTICELLA and Mary L. La Morticella, Defendants-Respondents.

Decided: September 28, 2001

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER, BURNS and LAWTON, JJ. John A. Collins, for plaintiffs-appellants. James E. Hanlon, for defendants-respondents.

Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint on the ground that Clarence M. Dixon (plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  Although defendants met their initial burden, plaintiffs raised a triable issue of fact by submitting the affidavit of a chiropractor who had treated plaintiff for over three years following the automobile accident at issue.   He stated his objective findings that the range of motion in plaintiff's lumbar spine was extremely limited and that he measured significant restrictions in the flexion and extension of plaintiff's lumbar spine two years after the accident.   He opined to a reasonable degree of medical certainty that those restrictions are permanent and that the automobile accident at issue was the cause of plaintiff's injuries.   That evidence is sufficient to raise a triable issue of fact whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) (see, Mangano v. Sherman, 273 A.D.2d 836, 709 N.Y.S.2d 293;  Rodriguez v. Duggan, 266 A.D.2d 859, 697 N.Y.S.2d 803;  see also, Paolini v. Sienkiewicz, 262 A.D.2d 1020, 691 N.Y.S.2d 836;  Hawkins v. Foshee, 245 A.D.2d 1091, 666 N.Y.S.2d 88).

Order unanimously reversed on the law without costs, motion denied and complaint reinstated.

MEMORANDUM: