Vinitsky v Cirigliano

[*1] Vinitsky v Cirigliano 2004 NY Slip Op 50777(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 This opinion is uncorrected and will not be published in the printed Official Reports.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. 2004-86 K C

GRIGORY VINITSKY and MARINA VINITSKY, Respondents,

against

JOSEPH CIRIGLIANO and ELAINE M. CIRIGLIANO, Appellants.

Appeal by defendants from an order of the Civil Court, Kings County (G. Wright, J.), entered on April 3, 2002, which denied their motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiff Grigory Vinitsky was injured in an automobile accident on July 10, 1997. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d).

The defendants failed to shift the burden to plaintiffs to raise a triable issue of fact that the injured plaintiff suffered a serious injury within the meaning of Insurance Law § 5102 (d). They relied on the plaintiff's doctors' reports which revealed herniated discs at L4-L5 and L5-S1 as well as positive readings on several tests and sciatica (see Taylor v Ellis, 5 AD3d 471 [2004]).

In any event, the plaintiffs successfully opposed the motion. They submitted an affirmation from a doctor in which she certified as accurate her attached unsworn report wherein she presented a qualitative assessment of the injured plaintiff's condition which had an objective basis and compared the injured plaintiff's limitations of motion of his lumbar spine to normal function (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).
Decision Date: July 07, 2004