Assael v. Marth
| Decision Date | 09 December 2002 |
| Citation | 751 N.Y.S.2d 315,300 A.D.2d 329 |
| Parties | MONA L. ASSAEL, Appellant,<BR>v.<BR>KRISTEN M. MARTH et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed, on the law, with one bill of costs, the motions are denied, and the complaint is reinstated.
The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955). However, the plaintiff's admissible evidence, an affirmation from a medical expert discussing, inter alia, the magnetic resonance imaging films he reviewed which showed cervical herniations, and the range of motion testing he performed during a recent examination, which indicated specific limitations in the range of motion of the plaintiff's cervical spine, was sufficient to raise a triable issue of fact (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Kauderer v Penta, 261 AD2d 365). Accordingly, the Supreme Court erred in granting the defendants' separate motions for summary judgment, and the complaint is reinstated.
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