Brown v Mat Enters. of NY Inc.

Brown v Mat Enters. of NY Inc. 2012 NY Slip Op 05332 Decided on July 3, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 3, 2012
Gonzalez, P.J., Andrias, Saxe, DeGrasse, Román, JJ.
7746 309587/09

[*1]Tayshah Armstrong Brown, Plaintiff-Appellant,

v

Mat Enterprises of NY Inc., et al., Defendants-Respondents.




Seiden & Kaufman, Carle Place (Steven J. Seiden of counsel),
for appellant.
Weiner, Millo, Morgan & Bonanno, LLC, New York (Douglas
A. Gingold of counsel), for respondents.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered November 23, 2011, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Defendants established their prima facie entitlement to judgment as a matter of law in this action where plaintiff alleges that she suffered a miscarriage as a result of the subject motor vehicle accident. Defendants submitted the report of their expert, who reviewed plaintiff's medical records and concluded that the accident did not cause plaintiff to lose the fetus. The expert noted the two-week delay between the accident and the loss of the fetus, and the fact that in the intervening time, both plaintiff and the fetus had normal examinations (see generally Franchini v Palmieri, 1 NY3d 536, 537 [2003]).

In opposition, plaintiff raised a triable issue of fact. Her treating obstetrician found that the accident caused her to lose the fetus, and that her prior pregnancies, births and abortions did not play a role in the miscarriage (see Pisani v First Class Car & Limousine Serv. Corp., 82 AD3d 596, 597 [2011]; Tsamos v Diaz, 81 AD3d 546 [2011]). Given the conflicting evidence in the medical records, the matter should be resolved by the trier of fact.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 3, 2012

DEPUTY CLERK