LANDOLFI v. Michael S. Dominguez, appellant.

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

Adam LANDOLFI, respondent, v. CITY OF NEW YORK, et al., defendants, Michael S. Dominguez, appellant.

Decided: August 16, 2004

FRED T. SANTUCCI, J.P., HOWARD MILLER, DANIEL F. LUCIANO, STEPHEN G. CRANE, and ROBERT A. SPOLZINO, JJ. Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), for appellant. Jeffrey S. Pomerantz (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Julie T. Mark and Brian J. Isaac] of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Michael S. Dominguez appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated September 5, 2003, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him 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 affirmed, with costs.

The appellant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (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).   In opposition, the plaintiff raised a triable issue of fact through the affidavit of his treating physician describing his treatment of the plaintiff over a period of years, and quantifying the restrictions he found in the plaintiff's cervical and lumbosacral range of motion during his examination in May 2003.

Accordingly, the Supreme Court properly denied the appellant's motion for summary judgment dismissing the complaint insofar as asserted against him.

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