POLLAS v. JACKSON

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

AnnMarie Adriena POLLAS, appellant, v. Aminah R. JACKSON, respondent.

Decided: December 22, 2003

DAVID S. RITTER, J.P., NANCY E. SMITH, WILLIAM D. FRIEDMANN, HOWARD MILLER, STEPHEN G. CRANE, JJ. Antin, Ehrlich & Epstein, LLP, New York, N.Y. (Jeffrey S. Antin and Frank Trief of counsel), for appellant. Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (Robert Gironda of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered December 20, 2002, which granted 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).

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

Assuming, without deciding, that the evidence proffered by the defendant established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), the evidence submitted by the plaintiff in opposition demonstrated that as a consequence of the accident, she suffered two torn menisci of the right knee.   This prevented her from engaging in activities in which she had previously participated.   This evidence raised a triable issue of fact as to whether she sustained a “significant limitation of use of a body function or system” (CPLR 5102[d];  see D'Amato v. Stomboli, 264 A.D.2d 800, 695 N.Y.S.2d 579).   Accordingly, the motion should have been denied.

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