DiFilippo v. Jones

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated January 18, 2005, which, upon granting the plaintiffs motion for leave to renew and reargue, vacated its prior order dated June 28, 2004, granting the defendant’s motion for summary judgment dismiss [789] ing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and denied the defendant’s motion. Ordered that the order is affirmed, with costs. The defendant made a prima facie showing of her entitlement to summary judgment on the basis of the plaintiff s medical records, as well as the affirmed reports of her examining physicians, an orthopedist and a neurologist (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]; Casella v New York City Tr. Auth., 14 AD3d 585 [2005]; Petropoulos v New York City Tr. Auth., 11 AD3d 522 [2004]). However, the affidavit of the plaintiffs chiropractor was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury. Accordingly, the defendant was not entitled to summary judgment dismissing the complaint. Adams, J.P., Ritter, Goldstein, Skelos and Dillon, JJ., concur.