Harker v Henry

[*1] Harker v Henry 2004 NY Slip Op 50775(U) Decided on July 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 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. 2003-1040 K C

VINCENT HARKER, Appellant,

against

LEE BENSON HENRY and THE HERTZ CORPORATION, Respondents.

Appeal by plaintiff from an order of the Civil Court, Kings County (B. Bayne,

J.), entered April 3, 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). The two reports stated that there were no objective findings of serious injury to plaintiff's cervical or lumbar spines. This shifted the burden to the plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff successfully opposed the motion by presenting evidence that he suffered a serious injury. He submitted an affirmation from his treating physician who described plaintiff's numeric limitation of cervical and lumbar range of motion contemporaneous with the accident, as well as more than three years later, and the tests performed (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). The physician further indicated that the injuries were causally related to the subject accident. Accordingly, defendants' motion for summary judgment should have been denied.
Decision Date: July 07, 2004