Florez v. Diaz

• Decision Date: 20 October 1997
• Citation: 663 N.Y.S.2d 620,243 A.D.2d 607
• Parties: Gloria C. FLOREZ, Respondent, v. Catalina DIAZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 620

663 N.Y.S.2d 620

243 A.D.2d 607

Gloria C. FLOREZ, Respondent, v. Catalina DIAZ, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 20, 1997.

Isserlis & Sullivan, Bethpage (Alan H. Krystal, of counsel), for appellant.

Neal Forman, Brooklyn (Joseph P. Grancio, of counsel), for respondent.

Before MILLER, J.P., and RITTER, SULLIVAN, SANTUCCI and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated October 2, 1996, as granted the plaintiff's motion for partial summary judgment on the issue of liability and denied her cross motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff established a prima facie case of negligence through evidentiary proof that the defendant's vehicle struck the rear end of the plaintiff's vehicle while it was stopped for a red light (see, Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 135, 269 N.Y.S.2d 115, 216 N.E.2d 324; Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110; Gambino v. City of New York, 205 A.D.2d 583, 613 N.Y.S.2d 417). The defendant failed to rebut the inference of negligence created by the unexplained rear-end collision (see, Carter v. Castle Elec. Contr. Co., 26 A.D.2d 83, 85, 271 N.Y.S.2d 51). Thus, the Supreme Court properly granted the plaintiff's motion for partial summary judgment on the issue of liability.

Furthermore, there is an issue of fact as to whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d). The doctor's affirmation submitted in opposition to the defendant's cross motion for summary judgment stated that the plaintiff suffers from disc bulges along her spine at C5-C6, C6-C7, and L4-L5, with an attendant 33.33% loss of motion in her cervical spine and neck, and a 50% loss of motion in her lower back. The treating physician's conclusion was based on his review of Magnetic Resonance Imaging films and X-rays. The plaintiff's evidence raised a triable issue of fact as to the existence of a serious injury, which is for the jury to determine (see, Puma v. Player, 233 A.D.2d 308, 649 N.Y.S.2d 461; Zalduondo v. Lazowska, 234 A.D.2d 455, 651 N.Y.S.2d 117...