Marszalek v. Brown

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of Will Poultry Co., Inc. (defendant), for summary judgment dismissing the complaint against it. Plaintiff was injured when her vehicle was struck by a truck operated by defendant Jeffrey S. Brown and owned by defendant. Defendant failed to present evidence establishing as a matter of law that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Plaintiff, through an affidavit from one of her treating physicians, raised issues of fact whether she sustained a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system (see, Insurance Law § 5102 [d]). In addition, plaintiff established prima facie that she suffered from a medically determined injury that curtailed her from performing her usual activities “to a great extent rather than some slight curtailment” for the statutory period (Licari v Elliott, 57 NY2d 230, 236; see, Tankersley v Szesnat, 235 AD2d 1010, 1013; Gleissner v LoPresti, 135 AD2d 494, 495; cf., Shames v Murtha, 204 AD2d 841). (Appeal from Order of Supreme Court, Erie County, Mahoney, J. — Summary Judgment.) Present — Green, J. P., Pine, Hayes, Callahan and Fallon, JJ.