From Casetext: Smarter Legal Research

Molina v. Choi

Appellate Division of the Supreme Court of New York, Second Department
Oct 21, 2002
298 A.D.2d 508 (N.Y. App. Div. 2002)

Opinion

2001-04290

Submitted April 10, 2002.

October 21, 2002.

In an action to recover damages for personal injuries, the defendant Luis A. Guinand appeals from so much of an order of the Supreme Court, Queens County (Dye, J.), dated January 22, 2001, as denied, with leave to renew upon the completion of discovery, his motion for summary judgment to dismiss the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Robert P. Tusa, Garden City, N.Y. (David Holmes of counsel), for appellant.

Pops Associates, New York, N.Y. (Seymour I. Yanofsky of counsel), for respondent.

Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, HOWARD MILLER, THOMAS A. ADAMS, JJ.


DECISION ORDER

ORDERED that the order is modified, upon searching the record, by deleting the provision granting leave to renew the motion upon the completion of discovery; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly denied the appellant's motion for summary judgment on the issue of whether the plaintiff sustained a serious injury (see Insurance Law § 5102[d]). In opposition to the appellant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact as to whether she sustained such an injury by submitting admissible evidence indicating that she sustained objectively-measured, specifically-quantified limitations of motion in her lumbar and cervical spines (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Gomez v. New York City Tr. Auth., 291 A.D.2d 431; Grossman v. Wright, 268 A.D.2d 79, 84; Wilner v. Gauthier, 264 A.D.2d 732).

However, the pending deposition of the appellant is not determinative of the issue of whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d). Thus, it was unnecessary to deny the appellant's motion for summary judgment with leave to renew after the deposition was completed.

SANTUCCI, J.P., SMITH, KRAUSMAN, H. MILLER and ADAMS, JJ., concur.


Summaries of

Molina v. Choi

Appellate Division of the Supreme Court of New York, Second Department
Oct 21, 2002
298 A.D.2d 508 (N.Y. App. Div. 2002)
Case details for

Molina v. Choi

Case Details

Full title:GABRIELLA MOLINA, respondent, v. NOSA CHOI, defendant, LUIS A. GUINAND…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 21, 2002

Citations

298 A.D.2d 508 (N.Y. App. Div. 2002)
748 N.Y.S.2d 513

Citing Cases

Tiso v. Sasso

Here, while defendants have met their initial burden of establishing that the plaintiff has not sustained a…

Roshdy v. Bardsley

A designation set forth by medical proof of a numeric percentage or degree of a plaintiff's loss of range of…