Opinion
April 24, 1995
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
The plaintiff met her burden, in opposition to the defendant's motion which established a prima facie case for summary judgment, by submitting sufficient evidence creating a triable issue of fact with regard to her claim that she sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 N.Y.2d 955, 956-957). The plaintiff submitted a report and sworn affidavit of her chiropractor who stated that, based upon certain tests performed during his examination and treatment of the plaintiff, it was his opinion that the plaintiff had sustained a permanent injury and a significant limitation in the range of motion of her cervical spine. The chiropractor supplied copies of computerized range of motion test results and stated that radiographic tests revealed that the plaintiff had suffered a "wedged disc" and a "disc degeneration" as a result of the accident. Notwithstanding the contrary opinions of the defendant's examining physicians, this evidence was sufficient to create a triable issue of fact with regard to the plaintiff's allegation that she sustained a serious injury (see, Morsellino v Frankel, 161 A.D.2d 748; Ottavio v Moore, 141 A.D.2d 806, 807; see generally, Dufel v Green, 84 N.Y.2d 795). Bracken, J.P., Krausman and Goldstein, JJ., concur.
Upon my review of the record, I cannot agree with my colleagues' conclusion that the the report and sworn affidavit of the plaintiff's chiropractor demonstrated a triable issue of fact sufficient to defeat the defendant's prima facie case for summary judgment. Thus, I would affirm Justice Levitt's order, for the reasons stated therein.