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Moore v. Raza2/11/2004
This opinion is uncorrected and subject to revision before publication in the Official Reports.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing theáclaim under the permanent loss of use of a body organ, member, function or system category of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for allegedly serious injuries she sustained when the vehicle she was driving was struck by a vehicle driven by defendant. Supreme Court denied defendant's motion for summary judgment dismissing the complaint, which was made on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345). We agree with the court that plaintiff raised triable issues of fact with respect to the categories of serious injury asserted in her bill of particulars, with the exception of the permanent loss of use category. Defendant submitted proof that plaintiff suffered no injury whatsoever as a result of the accident, and plaintiff failed to raise an issue of fact whether her alleged "permanent loss of use of a body organ, member, function or system" (§ 5102 ) was total; rather, plaintiff's submissions establish only a limitation of use (see Oberly v Bangs Ambulance, 96 NY2d 295, 299). Therefore, we modify the order by granting the motion in part and dismissing plaintiff's claim under the permanent loss of use category.
Entered: February 11, 2004
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