Monaco v Pole Tech Corp.

[*1] Monaco v Pole Tech Corp. 2004 NY Slip Op 50835(U) Decided on July 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:ARONIN, J.P., GOLIA and RIOS, JJ.
NO. 2004-67 K C

MAUREEN A. MONACO, Respondent,

against

POLE TECH CORP. and SCOTT H. DAVIS, Appellants.

Appeal by defendants from so much of an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered March 11, 2003, as denied their motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

Defendants 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). Defendants' doctor found that plaintiff's neurological examination was normal but he did not have the plaintiff's MRIs to review. This shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

Plaintiff successfully opposed the motion by presenting evidence that she suffered a serious injury. She submitted an affirmation from her treating physician who first examined her soon after the accident and then in a recent examination. The physician designated the numeric percentages of plaintiff's loss of range of motion of her cervical spine. He stated that he read the MRI films which showed disc herniations at C5-C6 and C6-C7 as well as disc bulges at C4-C5 and L4-L5. He stated that these injuries were directly related to the accident. His opinion was sufficient to defeat defendants' motion for summary judgment (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 353 [2002]; Campbell v Cloverleaf Transp., Inc., 5 AD3d 169 [2004]; Cenatus v Rosen, 3 AD3d 546 [2004]).
Decision Date: July 21, 2004