Rachel A. Ortiz v Thomas M. Boyce

Ortiz v Boyce 2003 NY Slip Op 20158 [2 AD3d 1378] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

Rachel A. Ortiz, Respondent,
v
Thomas M. Boyce, Appellant. (Appeal No. 2.)

€"Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered February 13, 2003, which, inter alia, denied defendant's motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part, dismissing the claim under the significant disfigurement category of serious injury within the meaning of Insurance Law §  5102 (d), denying the cross motion in part and vacating the determinations that defendant's negligence was the sole proximate cause of plaintiff's injuries and that plaintiff sustained a serious injury under the permanent loss of use of a body organ, member, function or system, permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system and significant disfigurement categories of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Same memorandum as in McCabe v Boyce (2 AD3d 1375 [2003]). Present€"Pine, J.P., Wisner, Kehoe, Gorski and Lawton, JJ.