Lombardi v. Alff , 664 NYS2d 969 ( 1996 )

OPINION OF THE COURT

Stephen A. Ferradino, J.

This action arises from a motor vehicle accident occurring in the Town of Clifton Park, New York, on January 17, 1992. Jessica Lombardi was allegedly injured in the accident. Despite her claimed injuries, Jessica did not seek treatment until eight months after the accident, and then only by obtaining the treatment of a chiropractor, Patricia Zebree. She continued to attend school, though she claims that her performance suffered because of her injuries. The defendants have now moved for summary judgment on the ground that Jessica Lombardi did not sustain a serious injury within the meaning of section 5102 (d) of the Insurance Law as a matter of law.

The court is constrained to deny the motion. Though Jessica’s claim that the injuries prevented her from performing substantially all of her customary daily duties for not less than 90 days during the 180 days immediately following the accident is purely self-serving, and subjective, there is sufficient support in Zebree’s affidavit and medical reports for the plaintiffs’ claim of a permanent limitation of the use of a body organ, and a significant limitation in use of a body function, to defeat a motion for summary judgment. The court has found no case which has held that a claim of serious injury is precluded by a mere delay in seeking treatment. That fact reflects only on her credibility.

The plaintiffs shall submit an order in conformance with this decision.