Summary
holding that "restricted flexion 40 degrees, extension 10 degrees, lateral bending 10 degrees" in the cervical spine raises an issue of fact as to whether the plaintiff had suffered a "serious injury"
Summary of this case from Scotto v. MoraldoOpinion
March 4, 1991
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the order is affirmed, with costs.
The evidence submitted by the plaintiff in opposition to the defendants' motion for summary judgment included proof that she was suffering from a limitation in respect to the use of her cervical spine (defined as "restricted flexion 40 degrees, extension 10 degrees, lateral bending 10 degrees"), as well as from a limitation with respect to the use of her lumbosacral spine (also defined as "restricted flexion 40 degrees, extension 10 degrees, lateral bending 10 degrees"). The plaintiff's submissions also included evidence that these limitations might be permanent. Under these circumstances, the Supreme Court properly concluded that there were issues of fact as to whether the plaintiff had suffered a "serious injury" within the meaning of the Insurance Law (Insurance Law § 5102 [d]; see, Lopez v Senatore, 65 N.Y.2d 1017; Petrone v Thornton, 166 A.D.2d 513; Morsellino v Frankel, 161 A.D.2d 748; Lazarre v Kopczynski, 160 A.D.2d 772; Conde v Eric Serv. Corp., 158 A.D.2d 651 ; Healea v Andriani, 158 A.D.2d 587; Partlow v Meehan, 155 A.D.2d 647; Robbie v Ledeoux, 146 A.D.2d 764; Hughes v Poulin, 144 A.D.2d 846; Swenning v Wankel, 140 A.D.2d 428). Bracken, J.P., Kooper, Lawrence, Balletta and O'Brien, JJ., concur.