Walker v Lyttle

[*1] Walker v Lyttle 2005 NY Slip Op 50901(U) Decided on April 7, 2005 Supreme Court, Queens County Grays, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2005
Supreme Court, Queens County

Leroy Walker and Tanya Walker, Plaintiff(s),

against

Maurice a Lyttle, Defendant(s).



14537/03

Marguerite A. Grays, J.

The proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see, Zuckerman v. City of New York, 49 NY2d 557, 562; Alvarez v. Prospect Hosp., supra).

Upon review of the pleading submitted, the defendant has failed to sustain his burden. The affirmations submitted by Dr. Cantos raise questions of fact as to whether plaintiff sustained a "serious injury" as a result of the motor vehicle accident which occurred on August 14, 2002. [*2]Moreover, even assuming arguendo that the defendants met their burden, in opposition to the defendant's motion, the plaintiff has submitted sufficient evidence creating a triable issue of fact with regard to his claim that he sustained a serious injury within the meaning of Insurance Law §5102(d), (Gaddy v. Eyler, 79 NY2d 955, 956-957). The plaintiff submitted a sworn affidavit of his chiropractor who stated that, upon examination, the degree to which the plaintiff's movements were restricted in his cervical and lumbar spine, and noted that those restrictions had been objectively measured using a range of motion test. The affidavit also states that plaintiff's injuries were permanent. This evidence is sufficient to create a triable issue of fact with regard to the plaintiff's allegation that he sustained a serious injury (Vitale v. Lev Express Cab Corp., 273 AD2d 225; Ventura v. Moritz, 255 AD2d 506).

Accordingly, defendant's motion for summary judgment is denied.

Dated:April 7, 2005

MARGUERITE A. GRAYS

J.S.C.