LoPinto v. Guzzo

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated December 21, 1998, which denied her motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, without costs or disbursements. The defendant’s motion established a prima facie case for summary judgment in her favor. However, the plaintiff submitted sufficient evidence to create a triable issue of fact with regard to his claim that he sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff submitted an affidavit by his chiropractor which stated that, based upon certain tests performed during his examination of the plaintiff, it was his opinion that the plaintiff had a significant limitation in the range of motion of his cervical spine/Notwithstanding the contrary opinions of the defendant’s examining physicians, that evidence was sufficient to raise a triable issue of fact with regard to the plaintiff’s allegation that he sustained a serious [420] injury (see, Rut v Grigonis, 214 AD2d 721). Mangano, P. J., Ritter, Joy, McGinity and Smith, JJ., concur.