The plaintiff instituted this action seeking damages for personal injury allegedly sustained in a car accident with a tractor trailer truck owned and operated by the defendants occurring on June 25, 2008 at approximately 11:00 am on the Cross Bronx Expressway at or near the vicinity of Third Avenue in the Bronx, in the City and State of New York. The plaintiff was traveling eastbound on the Cross Bronx Expressway in her 2006 Nissan Sentra in the center Sane when the tractor trailer owned by defendant, and being operated by co-defendant, Mr. MC, also traveling eastbound is alleged by plaintiff to have attempted to change lanes from the left lane into the plaintiff’s lane striking her vehicle twice on the driver’s side. The plaintiff describes the Cross Bronx Expressway that day as congested but with traffic moving and that her motor vehicle was alongside the tractor trailer when it attempted to move from the left lane into her vehicle’s lane. The plaintiff thereafter instituted the present lawsuit.
The defendants’ now move for summary judgment pursuant to CPLR §3212 dismissing the plaintiff’s complaint because the plaintiff has not sustained a “serious physical injury” as that term is defined in Insurance Law §5102(d). The plaintiff opposes the defendants’ motion. For the reasons stated herein, the defendants’ motion is denied in its entirety.
The Court’s function on a motion for summary judgment is issue finding not issue determination; it is a most drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented.
Although the question of the existence of a “serious injury” is often left to the jury, where properly raised, the issue of whether a plaintiff is barred from recovery in a judicial forum for want of a “serious injury” is, in the first instance, for the Court’s determination. If it can be said, as a matter of law, that plaintiff suffered no serious injury within the meaning of the Insurance Law, then plaintiff has no claim to assert and there is nothing for the jury to decide.
Insurance Law §5104 provides that an individual injured in an automobile accident may bring a negligence cause of action only upon a showing that the individual has incurred a “serious injury” within the meaning of the no-fault law. Insurance Law §5102(d) defines “serious injury” as a personal injury which results in death; dismember-ment, significant disfigurement and fracture, loss of a fetus, permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member, significant (imitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
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