Ahmed v Khan

[*1] Ahmed v Khan 2004 NY Slip Op 51269(U) Decided on October 25, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 25, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
2003-1718 Q C

FARZANA AHMED, Respondent,

against

MOHAMMED A. KHAN, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (V. Brathwaite, J.), entered October 2, 2003, which denied his motion for summary judgment.

Order unanimously affirmed without costs.

The medical evidence submitted by defendant in support of his motion for summary judgment made out a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). One of defendant's medical experts stated that plaintiff had a resolved cervical and lumbar strain/sprain. The defendant's other medical expert stated that plaintiff had full range of motion of her cervical spine. The burden, therefore, shifted to the plaintiff to raise a triable issue of fact that she sustained a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff successfully opposed the motion by presenting evidence that she suffered a serious injury. She submitted an affirmation from her treating physician who presented a qualitative assessment of plaintiff's condition which had an objective basis and compared the plaintiff's limitations of motion of her cervical spine to normal function (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). We note that the gap in treatment of a little more than two years does not require the granting of defendant's motion for summary judgment. There was evidence regarding the nature of her treatment for more than six months after the accident and plaintiff explained that she had to stop treatment at that point because her no-fault insurance ran out and she could not afford to pay for it herself (see Black v Robinson, 305 AD2d 438 [2003]).
Decision Date: October 25, 2004