Opinion
2003-08865
November 8, 2004.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Barasch, J.), dated September 4, 2003, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Anthony Lawrence Nelms did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Before: Krausman, J.P., Luciano, Mastro and Lifson, JJ., concur.
Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
In opposition to the defendant's establishment of a prima facie case for summary judgment, the physician for the injured plaintiff (hereinafter the plaintiff) submitted an affirmation stating that he had been treating the plaintiff since the date of the accident, and that at his most recent examination of the plaintiff on June 20, 2003, he found certain restrictions in the plaintiff's range of motion. Specifically, the physician reported, inter alia, that at that time, he objectively tested and measured losses in the plaintiff's cervical ranges of motion ranging from 16% to 55%, and losses in the plaintiff's lumbar ranges of motion ranging from 22% to 33%. These decreases in the plaintiff's range of motion as found by the plaintiff's physician in June 2003 were sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury.
Accordingly, the Supreme Court erred in granting the defendant's motion for summary judgment.