Opinion
(1485) CA 01-01143
December 21, 2001.
(Appeal from Order of Supreme Court, Onondaga County, Centra, J. — Summary Judgment.)
PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ.
Order unanimously reversed on the law without costs, motion and cross motion denied and amended complaint and third-party complaint reinstated.
Memorandum:
Supreme Court erred in granting defendants' motion for summary judgment dismissing the amended complaint and third-party defendant's cross motion for summary judgment dismissing the third-party complaint on the ground that plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102 (d). Even assuming, arguendo, that defendants and third-party defendant met their initial burden, we conclude that plaintiff raised a triable issue of fact precluding summary judgment. Plaintiff submitted the affirmation of her treating physician for four years following the motor vehicle accident, who opined that plaintiff suffered a cervical sprain with subluxation of C4/C5, which he concluded is a permanent consequential limitation of use of a body member. He found that plaintiff suffers from spasm and restricted movement in her neck, which constitute objective evidence of injury. Thus, we conclude that the affirmation of plaintiff's expert was sufficient to raise a triable issue of fact whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) ( see, Dixon v. La Morticella, 286 A.D.2d 951; Mangano v. Sherman, 273 A.D.2d 836; McGuirk v. Vedder, 271 A.D.2d 731, 732; Rodriguez v. Duggan, 266 A.D.2d 859).
Respondents offered before Supreme Court to amend their notices of lien so as to encumber the "commercial parcel" only, but seem to have retracted that offer on appeal.
By recent amendment, the statute, in the first quoted sentence, now refers to a locally filed subdivision plan in place of a subdivision defined by the Public Health Law, and now refers to the number "two" in place of the number "five" in the second quoted sentence (L 2000, ch 288, § 1). The amendment does not apply retroactively to govern this property dispute, but even if it did, the newly defined exception for residential property nevertheless would encompass petitioners' property.