Vance v. Dong Li

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Polizzi, J.), entered July 5, 1996, which granted the defendant’s motion for summary judgment dismissing the complaint based upon a finding that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d). Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. In his affidavit, the plaintiff’s treating physician indicated that, based on the physical examination he performed on the plaintiff more than three years after the accident, he found that the movement of the plaintiff’s cervical spine was restricted by more than 20 degrees and that the movement of his lumbar spine was restricted by more than 20 per cent. The affidavit raised an issue of fact as to whether the plaintiff suffered a serious injury as defined by Insurance Law § 5102 (d) (cf., Beckett v Conte, 176 AD2d 774; see, Petrone v Thornton, 166 AD2d 513; Phillips v Costa, 160 AD2d 855). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.