Jacksonv.United Parcel Service

Appellate Division of the Supreme Court of New York, Second DepartmentMay 23, 1994
612 N.Y.S.2d 186 (N.Y. App. Div. 1994)
612 N.Y.S.2d 186204 A.D.2d 605

May 23, 1994

Appeal from the Supreme Court, Kings County (Spodek, J.).

Ordered that the order is reversed, on the law, with costs, and the defendants' motion is denied.

The plaintiff met her burden of establishing a prima facie case of serious injury within the meaning of Insurance Law § 5102 (d) (see, Licari v. Elliott, 57 N.Y.2d 230; cf., Lopez v. Senatore, 65 N.Y.2d 1017). In opposition to the defendants' motion for summary judgment, the plaintiff submitted her own affidavit and excerpts from her examination before trial in which she complained of persistent pain and restriction of movement. In addition, the plaintiff submitted sworn affidavits from her treating physicians stating that she suffered a disc herniation at L5/S1, and that this condition would be permanent. The evidence submitted by the defendants was contradictory, creating issues of fact for a jury to determine (see, Morsellino v Frankel, 161 A.D.2d 748). Bracken, J.P., Miller, Copertino, Santucci and Altman, JJ., concur.