Grill v. Keith

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about May 11, 2000, which granted the motion and cross motion of defendants Burett and Keith, respectively, seeking summary judgment dismissal of the complaint, unanimously reversed, on the law, without costs, the motion and cross motion denied and the complaint reinstated against both defendants.

The record raises a triable issue of material fact as to whether plaintiff suffered a “serious injury” pursuant to Insurance Law § 5102 (d) in the form of a “significant limitation of use of a body function or system,” i.e., alleged injuries to her lower back purportedly limiting range of motion. In his affidavit, Dr. Westrich opined that plaintiff had suffered, inter alia, a “30% decrease [in] flexibility of her lumbosacral spine upon flexion & extension” and that “[t]here is a causal relationship between her injuries and the accident.” These findings, based upon his examination of plaintiff almost two years after the