JACKSON v. SORTO

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

Roberta JACKSON, et al., Appellants, v. Agustin SORTO, Respondent.

Decided: December 29, 1997

Before BRACKEN, J.P., and PIZZUTO, ALTMAN, KRAUSMAN and LERNER, JJ. Keith H. Weidman, Islandia, for appellants. Frank V. Merlino, Lake Success (Sweetbaum & Sweetbaum [Marshall D. Sweetbaum], of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from (1) stated portions of an order of the Supreme Court, Suffolk County (Doyle, J.), entered January 30, 1997, which, inter alia, granted the defendant's motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d) and denied that branch of their cross motion which was for leave to serve a first amended bill of particulars and to direct the defendant to provide a copy of the tape recording of the examination conducted by Dr. William Bloom, and (2) so much of an order of the same court, entered May 30, 1997, as upon renewal and reargument, adhered to the original determination.

ORDERED that the appeal from the order entered January 30, 1997, is dismissed, as that order was superseded by the order entered May 30, 1997, made upon renewal and reargument;  and it is further,

ORDERED that the order entered May 30, 1997, is modified, on the law, by deleting therefrom the provisions adhering to the court's original determinations granting the defendant's motion for summary judgment dismissing the complaint and denying those branches of the plaintiffs' cross motion which were for leave to serve a first amended bill of particulars and to direct the defendant to provide a copy of the tape recording of the examination conducted by Dr. William Bloom, and substituting therefor provisions denying the motion for summary judgment, granting those branches of the plaintiffs' cross motion, and vacating those portions of the order entered January 30, 1997;  as so modified, the order is affirmed insofar as appealed from;  and it is further,

ORDERED that the appellants are awarded one bill of costs.

The medical evidence submitted by the defendant in support of his motion for summary judgment made out a prima facie case that the plaintiff Roberta Jackson did not sustain a serious injury as defined by Insurance Law § 5102(d).  However, the affidavit and supplemental report sworn to by Ms. Jackson's treating chiropractor on October 17, 1996, which was submitted in opposition to the motion, provided objective evidence of the extent or degree of the limitation of use of her cervical spine and thus raised a triable issue of fact as to whether she had sustained a serious injury (see, Pareti v. Giglietta, 221 A.D.2d 607, 634 N.Y.S.2d 201).   Contrary to the Supreme Court's conclusion, we do not find the report to be tailored to meet statutory requirements (see, Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130).

We further conclude that the Supreme Court should have granted those branches of the plaintiffs' cross motion which were for leave to serve a first amended bill of particulars (see, CPLR 3025[b] ) and to direct the defendant to provide a copy of the tape recording which Dr. Bloom made of his examination of Ms. Jackson.

The plaintiffs' remaining contention is without merit.

MEMORANDUM BY THE COURT.

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