Summary
holding that plaintiff satisfied burden by submitting affidavit of single treating physician
Summary of this case from Malave v. FernandezOpinion
December 29, 1997
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motion for partial summary judgment is granted.
Upon our review of the record, we find that the plaintiffs sustained their burden of demonstrating, through the submission of proof in admissible form, that the plaintiff Bruce C. Mustello sustained a serious injury within the meaning of Insurance Law § 5102 (d) ( see, Gaddy v. Eyler, 79 N.Y.2d 955, 956; Licari v. Elliott, 57 N.Y.2d 230, 237). The plaintiffs' submissions in support of their motion included a physician's affirmation which revealed that the injured plaintiff had suffered an acute posttraumatic subluxation of the cervical spine, necessitating a surgical fusion that had left his head and neck "virtually frozen in the neutral position". This evidence was sufficient to establish a prima facie case that the injured plaintiff suffered a significant limitation of use of a body function or system ( see, Insurance Law § 5102 [d]); see also, Lopez v. Senatore, 65 N.Y.2d 1017, 1019; Huggins v. Daniels, 237 A.D.2d 491; Mendola v. Demetres, 212 A.D.2d 515).
Furthermore, the affirmation of the defendant's attorney, which suggested that the injured plaintiff's surgery was necessitated by a cogenital abnormality, was insufficient to raise an issue of fact to refute the plaintiffs' prima facie showing that the surgery was required due to injuries Bruce C. Mustello suffered in the automobile accident ( see, Akujuo v. USA Truck, 227 A.D.2d 360, 361).
Bracken, J. P., Pizzuto, Altman and Krausman, JJ., concur.