Shippey v Davis

[*1] Shippey v Davis 2004 NY Slip Op 50372(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 This opinion is uncorrected and will not be published in the printed Official Reports.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:PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-1034 Q C NO. 2003-1034 Q C

GLORIA L. SHIPPEY, Appellant,

against

HAROLD C. DAVIS and SHEZAD A. GOONDALL, Respondents.

Appeal by plaintiff from an order of the Civil Court, Queens County (B. Siegal, J.), entered May 6, 2003, which granted defendants' motion for summary judgment.

Order unanimously reversed without costs and defendants' motion for summary judgment denied.

The affirmed medical reports submitted by defendants in support of their motion for summary judgment made out a prima facie case that the plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). One of defendants' doctors stated that plaintiff is not impaired in any way causally related to the accident. Another doctor
stated that she was normal neurologically. This shifted the burden to the plaintiff to
raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).
RE:GLORIA L. SHIPPEY v HAROLD C. DAVIS

and SHEZAD A. GOONDALL

The plaintiff successfully opposed the motion by presenting evidence that she suffered a serious injury. She submitted an affirmation from her treating physician who presented a qualitative assessment of plaintiff's condition which had an objective basis and compared the plaintiff's limitations of motion of her cervical and lumbar spine (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). We note that there was a gap of less than two years in [*2]treatment and that there was evidence regarding the nature of her short-term treatment for approximately five months after the accident. Under the circumstances, the gap in treatment does not require the granting of defendants' motion for summary judgment (cf. Francis v Christopher (302 AD2d 425 [2003]).
Decision Date: April 27, 2004