Austin v New York City Tr. Auth.

[*1] Austin v New York City Tr. Auth. 2006 NY Slip Op 51416(U) [12 Misc 3d 143(A)] Decided on July 12, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-1159 Q C.

MARIETA AUSTIN, Appellant,

against

NEW YORK CITY TRANSIT AUTHORITY, TREVOR KINLOCK, RHONA MASON and EVEROL FOGAH, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered May 4, 2005. The order granted the motion by defendants Rhona Mason and Everol Fogah, and the cross motion by defendants New York City Transit Authority and Trevor Kinlock, for summary judgment.

Order reversed without costs and motion by defendants Rhona Mason and Everol Fogah, and cross motion by defendants New York City Transit Authority and Trevor Kinlock for summary judgment denied.

The defendants moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). In support of said motions, the doctors who examined plaintiff on behalf of the defendants indicated that plaintiff had significant restrictions of motion of her right shoulder. Under the circumstances, the defendants failed to meet their initial burden of demonstrating a prima facie entitlement to judgment as a matter of law (Yashayev v Rodriguez, 28 AD3d 651 [2006]; Tchjevskaia v Chase, 15 AD3d 389 [2005]; Marquez v Oballe, 14 AD3d 667 [2005]). Accordingly, we need not consider the sufficiency of plaintiff's opposition papers (see Torres v Safety Cab Corp., 25 AD3d 548 [2006]; Barrett v Jeannot, 18 AD3d 679 [2005]).

Golia and Belen, JJ., concur.

Weston Patterson, J.P., dissents in a separate memorandum.

Weston Patterson, J.P., dissents and votes to affirm the order in the following memorandum:

In my opinion, defendants' submissions establish, prima facie, that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102. Defendants submitted physicians' affirmations indicating no "neurological problems," no "effusion or tenderness of either shoulder," and that plaintiff's shoulders were "held in normal attitude" and "moved normally in abduction, internal and external rotation as well as forward elevation." Although some of the affirmations report plaintiff's subjective complaints of pain and note a limitation of motion, none of them attribute this limitation to the accident, but rather refer to a pre-existing arthritic condition unrelated to the accident. Moreover, one of the affirmations describes plaintiff as suffering from a "mild" disability. Contrary to the majority's opinion, such comments cannot be construed as demonstrating that plaintiff suffered "significant restrictions" of motion.

Having determined that defendants met their initial burden, I would review the sufficiency of plaintiff's opposition papers. Plaintiff failed to come forward with admissible evidence sufficient to raise a triable issue of fact. Plaintiff's medical report in opposition was unsworn and, thus, without probative value (see Vishnevsky v Glassberg, ___ AD3d ___, 2006 NY Slip Op 03767 [2d Dept 2006]).
Decision Date: July 12, 2006