Perlich v Vascones

[*1] Perlich v Vascones 2004 NY Slip Op 50375(U) Decided on May 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 4, 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. 2003-1059 K C

MARGARITA PERLICH, Respondent,

against

OLGA VASCONES and ANTHONY QUINOVESI, Appellants.

Appeal by defendants from an order of the Civil Court, Kings County

(A. Schack, J.), dated June 19, 2003, which denied their motion for summary judgment.

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

The affirmed medical reports submitted by defendants' medical experts 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). This shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff's opposition papers failed to raise a triable issue of fact. She failed to submit medical proof contemporaneous with the accident showing any initial range of motion restrictions in her spine (see Ifrach v Neiman, 306 AD2d 380 [2003]). The plaintiff also failed to raise a triable issue of fact as to whether her injuries prevented her from performing substantially all of her customary and usual activities during at least 90 of the first 180 days following the accident (Francis v Christopher, 302 AD2d 425 [2003]).
Decision Date: May 04, 2004