Berrouet v Rios

[*1] Berrouet v Rios 2004 NY Slip Op 50620(U) Decided on June 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:DECIDED June 15, 2004 SUPREME COURT OF THE STATE NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : ARONIN, J.P., GOLIA and RIOS, JJ.
NO.2003-1435 Q C

MIRTHA BERROUET, Respondent,

against

LEOPOLDO D. RIOS, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (D. Pineda-Kirwan, J.), entered on June 13, 2003, which denied his motion for summary judgment.

Order unanimously affirmed without costs.

Defendant moved for an order granting summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The medical evidence submitted by defendant in support of his motion made out a prima facie case that plaintiff did not sustain a serious injury. One of defendant's doctors stated that there was no neurologic disability. Another of defendant's doctors stated that the disc herniations and disc bulges were degenerative in nature. The burden, therefore, shifted to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

Plaintiff's opposition papers raised a triable issue of fact. Plaintiff submitted an affidavit from her treating physician which described her numeric limitation of cervical and lumbar ranges of motion and the tests performed (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). In addition, he read the MRI films which revealed that plaintiff suffered herniated discs at C3-C4, C4-C5 and C6-C7, along with bulging discs at C5-C6, L3-L4 and L4-L5 as a result of the accident.
Decision Date: June 15, 2004