Roca v Delgado

[*1] Roca v Delgado 2004 NY Slip Op 50609(U) Decided on June 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 7, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
NO. 2003-1430 Q C

ELIZABETH ROCA, Respondent,

against

CARLOS F. DELGADO, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County

(A. Gazzara, J.), dated July 25, 2002, which denied his motion for summary judgment.

Order unanimously affirmed without costs.

Defendant's doctor failed to set forth the objective tests supporting the claim that there was no limitation of range of motion of plaintiff's cervical and lumbar spines. Therefore, defendant failed to establish his entitlement to judgment as a matter of law (Taylor v Ellis, 5 AD3d 471 [2004]; Black v Robinson, 305 AD2d 438 [2003]). Inasmuch as defendant's motion failed to shift the burden to plaintiff, the sufficiency of plaintiff's opposition papers need not be considered (Aronov v Leybovich, 3 AD3d 511 [2004]).

In any event, the plaintiff successfully opposed the motion by presenting evidence that she suffered a serious injury. She submitted an affidavit from her chiropractor who presented a qualitative assessment of her condition which had an objective basis and compared plaintiff's limitation of motion of her cervical and lumbar spines to normal function contemporaneous with the accident as well as two and
one-half years later (see Jimenez v Parker, NYLJ, Apr. 6, 2004 [App Term, 2d & 11th
Jud Dists]). [*2]
Decision Date: June 07, 2004