Madden v Kien Luu

[*1] Madden v Kien Luu 2004 NY Slip Op 51100(U) Decided on September 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 29, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
x

VINCENT MADDEN, Respondent,

against

KIEN LUU, Appellant.

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

(A. Schack, J.), entered June 20, 2003, which denied his motion for summary judgment.

Order unanimously reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

The affirmed medical reports submitted by defendant in support of his motion for summary judgment made out a prima facie case that plaintiff did not sustain a serious
injury pursuant to Insurance Law § 5102 (d). They stated that plaintiff's injuries were resolved. This shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).
Plaintiff unsuccessfully opposed the motion. He failed to submit any medical proof contemporaneous with the accident showing initial limitation of motion of his cervical and lumbar spines. Furthermore, his proof did not provide any explanation for the significant gap between the time of the accident on October 30, 1998 and his visit to the doctor on September 27, 2001 (see Nemchyonok v Peng Liu Ying, 2 AD3d 421 [2003]). Finally, plaintiff's doctor did not state that the injuries were causally related to the accident nor did he mention that plaintiff had been in other motor vehicle accidents in 1990 and 1998 wherein he injured his cervical and [*2]lumbar spines as well.
Decision Date: September 29, 2004