Puma v. Player
| Decision Date | 04 November 1996 |
| Citation | 649 N.Y.S.2d 461,233 A.D.2d 308 |
| Parties | Gina M. PUMA, Appellant, v. Tammy PLAYER, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Elovich & Adell, Long Beach (Glenn Sabele and A. Trudy Adell, of counsel), for appellant.
McCabe & Cozzens, Mineola (Philip G. Menna, of counsel), for respondents Tammy Player and Linda Player.
Cheven & Keely, New York City (Thomas Torto, of counsel), for respondent Gerard Murphy.
Before O'BRIEN, J.P., and PIZZUTO, GOLDSTEIN and LUCIANO, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brucia, J.), entered November 15, 1995, which granted the separate motions of the defendant Gerard Murphy and the defendants Tammy Player and Linda Player for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, the defendants' motions are denied, and the complaint is reinstated.
The defendants moved for summary judgment contending that there was no "serious injury" within the meaning of Insurance Law § 5102(d). They established, prima facie, that the plaintiff's injuries were not serious (see, Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088; cf., Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130). In opposition to the defendants' motions, the plaintiff submitted an affidavit from her treating physician stating that she suffered a traumatically induced disc bulge at C5-C6, which was the cause of the plaintiff's pain and the reason why the range of motion of her cervical spine was 50% normal. The treating physician's conclusion was based on his review of a Magnetic Resonance Imaging (MRI) report, which was also submitted. Furthermore, the treating physician concluded that the plaintiff's condition would be permanent. 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, Mariaca-Olmos v. Mizrhy, --- A.D.2d ----, 640 N.Y.S.2d 604; Flanagan v. Hoeg, 212 A.D.2d 756, 624 N.Y.S.2d 853; Jackson v. United Parcel Service, 204 A.D.2d 605, 612 N.Y.S.2d 186; see also, Brown v. Stark, 205 A.D.2d 725, 613 N.Y.S.2d 705).
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