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Tomlinson v Miretsky
2006 NY Slip Op 50845(U) [11 Misc 3d 145(A)]
Decided on May 11, 2006
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 11, 2006
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: DAVIS, J.P. GANGEL-JACOB, J.
570936/05

Enid Tomlinson, Plaintiff-Respondent, - -

against

Edward Miretsky, Defendant-Respondent, -and- Tracey S. McKay, Defendant-Appellant, -and- Checker Taxi Cab Company, Defendant.


Defendant Tracey S. McKay appeals from an order of the Civil Court, Bronx County (Alison Y. Tuitt, J.), dated December 22, 2003, which denied his motion for summary judgment dismissing the complaint.


PER CURIAM:

Order (Alison Y. Tuitt, J.), dated December 22, 2003, affirmed, with $10 costs.

This personal injury negligence action involving a two-car collision at an intersection is not ripe for summary judgment disposition, there being issues of fact regarding how the accident occurred (see Romano v. 202 Corp., 305 AD2d 576 [2003]; Johnson v. Goldberger, 286 AD2d 604 [2001]).

Triable issues of fact also exist as to whether plaintiff's injuries met the serious injury threshold (see Insurance Law §5102[d]). Plaintiff's medical evidence of persistent and significant restrictions of motion five years after the accident was sufficient to defeat summary judgment and to refute the defense physician's statement that his examination of plaintiff revealed no limitation or disability (see Servones v. Toribio, 20 AD3d 330 [2005]). The interruption in plaintiff's treatment was adequately explained (see Pommells v. Perez, 4 NY3d 566 [2005]; Brown v. Achy, 9 AD3d 130 [2004]).

This constitutes the decision and order of the court.
Decision Date: May 11, 2006