Garwol v. Bruch , 726 N.Y.S.2d 509 ( 2001 )

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants’ motion seeking summary judgment dismissing the complaint. Although defendants established their entitlement to judgment as a matter of law, plaintiff raised an issue of fact whether she sustained a serious injury as a result of the motor vehicle accident. Plaintiff submitted the affidavit of her treating chiropractor, which was supported by the results of an independent chiropractic examination, an MRI that identified a herniated disc at C5-6 that is larger than it was in 1991 when it was first diagnosed, and objective findings of limitation of movement (see, Lopez v Senatore, 65 NY2d 1017, 1020).

We further conclude that the court properly granted plaintiffs cross motion seeking partial summary judgment on the issues of negligence and proximate cause. Plaintiffs affidavit establishes that plaintiff was stopped at a toll booth when her vehicle was struck from behind by a vehicle driven by defendant Whitman B. Schofield and owned by defendants Frank Bruch and Sally Bruch. The speculation of Frank Bruch that plaintiff may have backed into the Bruch vehicle in an attempt to change lanes is not sufficient to raise an issue of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562). (Appeal from Order of Supreme Court, Erie County, Howe, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Lawton, JJ.