Eng v. New Main Line Trading Corp. , 670 N.Y.S.2d 800 ( 1998 )

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Milano, J.), dated July 23,1997, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiffs failed to sustain a serious injury as defined by Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately, the motion is denied, and the complaint is reinstated.

In opposition to the motion for summary judgment, the plaintiffs submitted affidavits sworn to on May 20, 1997, by Dr. Andrew Brown which were based, inter alia, on examinations of the plaintiffs which he had performed approximately one month earlier, some three years after the occurrence of the accident. The affidavits specified the degree of restriction in the range of motion of the cervical and lumbar spines of the plaintiff Mary Eng, and the cervical spine of the plaintiff Eugene Eng. The affidavits were sufficient to raise a triable issue of fact as to whether the plaintiffs sustained a “significant limitation of use of a body function or system” (Insurance Law § 5102 [d]; see, Pareti v Giglietta, 221 AD2d 607, citing Beckett v Conte, 176 AD2d 774). Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.