DiFILIPPO v. JONES

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

Dante DiFILIPPO, respondent, v. Brendalee JONES, appellant.

Decided: October 31, 2005

THOMAS A. ADAMS, J.P., DAVID S. RITTER, GLORIA GOLDSTEIN, PETER B. SKELOS, and MARK C. DILLON, JJ. Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellant. Tierney & Tierney, Port Jefferson, N.Y. (Stephen A. Ruland of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated January 18, 2005, which, upon granting the plaintiff's motion for leave to renew and reargue, vacated its prior order dated June 28, 2004, granting the defendant's 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 denied the defendant's motion.

ORDERED that the order is affirmed, with costs.

The defendant made a prima facie showing of her entitlement to summary judgment on the basis of the plaintiff's medical records, as well as the affirmed reports of her examining physicians, an orthopedist and a neurologist (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;  Casella v. New York City Tr. Auth., 14 A.D.3d 585, 787 N.Y.S.2d 883;  Petropoulos v. New York City Tr. Auth., 11 A.D.3d 522, 782 N.Y.S.2d 797).   However, the affidavit of the plaintiff's chiropractor was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury.

Accordingly, the defendant was not entitled to summary judgment dismissing the complaint.

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