Peace v Slocombe

[*1] Peace v Slocombe 2004 NY Slip Op 51542(U) Decided on December 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
2003-1712 Q C

MAUREEN PEACE, Appellant, -and- SHAWN PEACE JR., an Infant under the age of 14 years old by his Mother and Natural Guardian, MAUREEN PEACE, Plaintiff,

against

NORMA SLOCOMBE, Defendant-Respondent. NORMA SLOCOMBE, Third-Party Plaintiff, REYNOLD PERSAUD and ALFRED A. BAYCHU, Third-Party Defendants.

Appeal by plaintiff Maureen Peace, as limited by her brief, from so much of an order of the Civil Court, Queens County (K. Kerrigan, J.), entered October 29, 2003, as granted defendant's and third-party defendants' respective motion and cross motion for summary judgment dismissing her cause of action. [*2]

Order insofar as appealed from reversed without costs and the branch of defendant's and third party-defendants' respective motion and cross motion for summary judgment dismissing Maureen Peace's cause of action denied.

The affirmed medical reports submitted by defendant Slocombe's experts in support of the motion made a prima facie showing that plaintiff Maureen Peace did not sustain a serious injury pursuant to Insurance Law § 5102 (d). This shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

Plaintiff Maureen Peace's opposition raised a triable issue of fact. The affirmation of her physician revealed that she suffered a herniated disc at L5-S1 and had significant limitation of motion of her lumbar spine. [*3]

We note that plaintiff Shawn Peace, Jr. did not oppose the motion in the court below nor is any issue raised with regard to him on this appeal. Accordingly, the dismissal of his cause of action remains undisturbed.

Aronin, J.P., and Golia, J., concur.

Patterson, J., dissents in a separate memorandum.

Patterson, J., dissents and votes to affirm the order insofar as appealed from in the following memorandum:

In my opinion, plaintiff Maureen Peace's opposition failed to raise a triable issue of fact. The affirmation of her physician improperly relied upon unsworn medical reports prepared by other physicians (Phillippe v Ivory, 297 AD2d 666 [2002]). The affirmation also failed to specifically quantify the alleged loss of motion he observed in Ms. Peace's lumbar spine (Merisca v Alford, 243 AD2d 613 [1997]). In view of the foregoing, I need not reach the issue as to whether the motion court properly excluded the result of an MRI study, included in a supplemental bill of particulars, which revealed that Ms. Peace had a herniated disc at L5-S1.
Decision Date: December 08, 2004