Greene v Appel

[*1] Greene v Appel 2004 NY Slip Op 51544(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2003-1749 K C

REBECCA GREENE, Respondent,

against

ISAAC APPEL, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (P. Sweeney, J.), entered October 24, 2003, which denied his motion for summary judgment.

Order unanimously affirmed without costs.

Defendant moved for summary judgment on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). Defendant presented affirmations by the doctors who examined plaintiff on defendant's behalf more than three years after the accident in which they stated that
she no longer suffered from any injuries as a result of the accident. While they did not address the 90/180 day category of the statute, they submitted plaintiff's medical records which raised questions of fact as to whether her injuries required her to stay home from work for 90 out of the 180 days following the accident. In addition, defendant relied upon plaintiff's examination before trial in which she stated that she missed seven months of work as a meter maid as a result of the accident and that she received Workers' Compensation benefits. She also stated that she had to bring a note from her physical therapist before she could return to work. Consequently, defendant failed to meet his initial burden of proof and, therefore, has not shifted the burden to plaintiff (see Lowell v Peters, 3 AD3d 778 [2004]; Van Norden-Lipe v Hamilton, 294 AD2d 749 [*2][2002]). Accordingly, the court properly denied the motion.
Decision Date: December 08, 2004