Vaccaro v J & N Auto Leasing Co.

[*1] Vaccaro v J & N Auto Leasing Co. 2004 NY Slip Op 50309(U) Decided on April 14, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 14, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:DECIDED April 14, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2002-1430 Q C

JENNIFER VACCARO, Respondent,

against

J & N AUTO LEASING CO., INC., and ROBERT McMILLEN, Appellants, -and- LOUISE I. LOTZ, Defendant.

Appeal by defendants J & N Auto Leasing Co., Inc., and Robert McMillen from so much of an order of the Civil Court, Queens County (D. Elliot, J.), dated October 1, 2001, as denied their motion for summary judgment dismissing the complaint.

Order unanimously affirmed without costs.

The affirmed medical report submitted by defendants J & N Auto Leasing Co., Inc., and Robert McMillen in support of their motion for summary judgment made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Defendants' doctor stated that plaintiff had a resolved lumbar sprain. This
shifted the burden to plaintiff to raise a triable issue of fact (Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff successfully opposed the motion by presenting evidence that she suffered a significant limitation of use of a body function or system. She submitted an affidavit from a [*2]chiropractor who presented a qualitative assessment of plaintiff's condition which had an objective basis and compared the plaintiff's limitations of
motion of her cervical and lumbar spines to normal function (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). This was sufficient to raise a triable issue of fact.
Decision Date: April 14, 2004