Kingwood v King

[*1] Kingwood v King 2006 NY Slip Op 50935(U) [12 Misc 3d 1156(A)] Decided on February 9, 2006 Supreme Court, Richmond County McMahon, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2006
Supreme Court, Richmond County

Sallie Kingwood, Plaintiff,

against

Earlnora King, W.G. Dennis and Frank P. Miller, Defendant(s).



11017/04

JUDITH N. McMAHON, J.

On June 23, 2001, the plaintiff was a passenger in an automobile owned and driven by defendant Earlnora King. King's vehicle was involved in an accident with an automobile driven by defendant W.G. Dennis and owned by defendant Frank P. Miller. The plaintiff allegedly sustained injuries as a result of this accident. In March, 2004, the plaintiff commenced this action and issue was joined by service of an answer by each defendant. The defendants now move for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

The defendants made a prima facie showing of their entitlement to summary judgment (see, Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]; Chou v. Welsh, 15 AD3d 622 [2d Dept. 2005]). At oral argument, defense counsel contended that the plaintiff's papers in opposition should not be considered because she had refused to perform range of motion testing during the defendants' Independent Medical Examination. A review of the orthopedic report submitted by the defendants indicates that the plaintiff did not perform range of motion testing during the cervical portion of the exam because of pain. However, the plaintiff did participate in the range of motion testing for her wrists/hands, lumbar spine, bilateral hips, bilateral legs, bilateral knees and bilateral ankles. Thus, defendants' argument is rejected.

In opposition, the plaintiff, who has two herniated discs, submitted, among other things, an affirmation of her neurologist which specified the decreased range of motion in her cervical spine, and explained that these injuries are permanent and causally related to the motor vehicle accident. The neurologist's opinion, supported by objective evidence, is sufficient to raise a triable issue of fact precluding the granting of summary judgment (see, Toure v. Avis Rent A Car Sys., supra; Mauro v. Gold Star Limo Corp.,8 AD3d 352 [2d Dept. 2004]; Fabiano v. Kirkorian, 306 AD2d 373 [2d Dept. 2003]). Accordingly, it is

ORDERED, that the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.

E N T E R, [*2]

Dated: February 9, 2006

J.S.C.