Panton v. Spann

In an action to recover damages for personal injuries, the defendant Shana Spann appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated March 31, 2004, which denied her 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 affirmed, with costs. Although the defendant Shana Spann (hereinafter the defendant) made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law [430] § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]), the affirmation of the plaintiffs examining physician was sufficient to raise a triable issue of fact. The physician examined the plaintiff and, inter alia, identified and quantified specific limitations in movement, which he said were of a significant nature and substantially impaired the plaintiffs ability to perform her usual and customary work and daily living activities. In addition, the plaintiff proffered an acceptable explanation for the gap in time between the conclusion of her medical treatments and the date of the physician’s examination (compare Jimenez v Kambli, 272 AD2d 581 [2000]; Smith v Askew, 264 AD2d 834 [1999]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment. H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.