Soleman v Zelinsky

[*1] Soleman v Zelinsky 2004 NY Slip Op 50370(U) Decided on April 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:DECIDED April 27, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-1035 K C

SHAWKAT SOLEMAN, Respondent,

against

RUSSELL ZELINSKY and R.A.Y. MEDICAL, P.C., Appellants.

Appeal by defendants from an order of the Civil Court, Kings County (A. Schack, J.), dated June 20, 2003, which denied their motion for summary judgment.

Order unanimously affirmed without costs.

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). In support of their motion, one of defendants' experts noted that MRIs of plaintiff's back revealed disc bulges at C2-C3, C3-C4, L2-L3 and L5-S1. After examining the plaintiff, the same expert found that plaintiff had resolved cervical and lumbar injuries. Accordingly, the burden 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]).

In opposition, the plaintiff submitted an affidavit from plaintiff's treating chiropractor who examined him soon after the accident and continued to treat him for almost three months thereafter. He performed a recent examination of the plaintiff wherein he quantified the results with percentages of the loss of range of motion of the cervical and lumbar spines.

In view of the foregoing, the plaintiff established that there is an issue of fact as to whether he sustained a significant limitation of use of a body function or system within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]; Cenatus v Rosen, 3 AD3d 546 [2004]).
Decision Date: April 27, 2004