Francovig v. Senekis Cab Corp.

• Decision Date: 19 June 2007
• Docket Number: 2006-06905.
• Citation: 2007 NY Slip Op 05460,41 A.D.3d 643,838 N.Y.S.2d 635
• Parties: ANGELICA FRANCOVIG, Appellant, et al., Plaintiffs, v. SENEKIS CAB CORP., Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

41 A.D.3d 643

838 N.Y.S.2d 635

2007 NY Slip Op 05460

ANGELICA FRANCOVIG, Appellant, et al., Plaintiffs, v. SENEKIS CAB CORP., Respondent, et al., Defendant.

2006-06905.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided June 19, 2007.

In an action to recover damages for personal injuries, the plaintiff Angelica Francovig appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Price, J.), entered June 8, 2006, as granted that branch of the motion of the defendant Senekis Cab Corp. which was for summary judgment dismissing the complaint insofar as asserted against it by her on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Senekis Cab Corp. which was for summary judgment dismissing the complaint insofar as asserted against it by the plaintiff Angelica Francovig is denied.

The Supreme Court properly determined that the defendant Senekis Cab Corp. established its prima facie burden on that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it by the plaintiff Angelica Francovig (hereinafter Angelica) since it established that Angelica did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). However, in opposition, Angelica raised a triable issue of fact. The Supreme Court erred in finding that Angelica failed to adequately explain the lengthy gap in her treatment between October 2002 and her most recent examination by her treating chiropractor in 2006. Angelica stated in her affidavit, as well as in her deposition testimony, that she stopped treatment in October 2002 because no-fault insurance was cut off and she could not afford any further treatments out of her own pocket (see Williams v New York City Tr. Auth., 12 AD3d 365 [2004]; Black v Robinson, 305 AD2d 438 [2003]).

In addition, the affidavit of Angelica's treating chiropractor raised a triable issue of fact as to whether Angelica sustained a serious injury within the meaning of the no-fault statute under either the permanent consequential or significant limitation of use categories of Insurance Law § 5102 (d) (see Lim...