Reyes v Diaz

Reyes v Diaz 2011 NY Slip Op 01711 Decided on March 8, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 8, 2011
Andrias, J.P., Catterson, Moskowitz, Abdus-Salaam, Román, JJ.
4467 302792/08

[*1]Yahaira Reyes, Plaintiff-Respondent,

v

Alejandro A. Diaz, et al., Defendants-Appellants.




Feinman & Grossbard, P.C., White Plains (Steven N. Feinman
of counsel), for appellants.
Budin, Reisman, Kupferberg & Bernstein, LLP, New York
(Adam S. Bernstein of counsel), for respondent.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered June 17, 2010, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to make a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Defendants' orthopedic surgeon failed to indicate the objective tests used to determine the range of motion in plaintiff's hip. Defendant failed to offer any expert opinion addressed to plaintiff's claimed psychological injuries (see Offman v Singh, 27 AD3d 284 [2006]). In addition, the opinion of defendants' radiologist that plaintiff's herniation was degenerative was "too equivocal to satisfy defendant[s'] prima facie burden to show that such herniation was not caused by a traumatic event" (Glynn v Hopkins, 55 AD3d 498, 498 [2008]).

In view of the foregoing, we need not consider the sufficiency of plaintiff's opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2011

CLERK