Dawson v Weisz

[*1] Dawson v Weisz 2004 NY Slip Op 50228(U) Decided on March 31, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:ARONIN, J.P., GOLIA and RIOS, JJ.
NO. 2003-1283 K C

MALCOLM DAWSON, Respondent,

against

ROBERT WEISZ and RUSSELL D. WEISZ, Appellants.

Appeal by defendants from an order of the Civil Court, Kings County (A. Fisher Rubin, J.), dated July 23, 2003, which denied their motion for summary judgment.

Order unanimously reversed without costs and defendants' motion for summary judgment granted dismissing the complaint.

Plaintiff was injured on March 10, 1995 when he was struck by an automobile. Defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d).

Defendants properly relied on the unsworn medical reports of plaintiff's doctor in support of their motion (Pagano v Kingsbury, 182 AD2d 268 [1992]; see also Fragale v
Geiger, 288 AD2d 431 [2001]). Plaintiff's treating physician, who first saw plaintiff 10 days after the accident, stated that plaintiff had suffered a hip contusion. He made no mention of a fractured femur. While the admitting doctor at the hospital wrote that plaintiff had suffered a fractured femur, it was not mentioned in the final diagnosis. The defendants also submitted affirmed medical reports which did not mention a fractured femur and stated that plaintiff was normal orthopedically and neurologically. These submissions made out a prima facie case that the plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d).

The burden was shifted to the plaintiff to raise a triable issue of fact that he sustained a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]). However, the plaintiff's doctor's qualitative assessment of plaintiff's condition of limitation of motion was not supported by [*2]objective medical proof (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). Under the circumstances, therefore, defendants' motion should have been granted.
Decision Date: March 31, 2004