Jean-Baptiste v Uzamere

[*1] Jean-Baptiste v Uzamere 2005 NY Slip Op 50211(U) Decided on February 18, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 18, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-954 K C

Stewart Jean-Baptiste and Saskia Labriel, Respondents,

against

Joann E. Uzamere and ELRAC, INC., Defendants, -and- PATRICK BERTIN and MAXENE LOUIS, Appellants.

Appeal by defendants Bertin and Louis from an order of the Civil Court, Kings County (J. Battaglia, J.), entered April 16, 2004, which denied their motion for summary judgment.

Order unanimously affirmed without costs.

The medical evidence submitted by defendants Bertin and Louis in support of their motion for summary judgment made out a prima facie case that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). One of the defendants' doctors conducted tests and found no limitation of motion of plaintiff's cervical and lumbar spines. The burden, therefore, shifted to the injured plaintiff to raise a triable issue of fact that he sustained a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The injured plaintiff successfully opposed the motion by presenting evidence that he sustained a serious injury. He submitted an affidavit from his treating chiropractor who presented a qualitative assessment of plaintiff's condition which had an objective basis and compared plaintiff's limitations of motion of his lumbosacral spine to normal function contemporaneously with the accident as well as three years later (see Toure v Avis Rent A Car [*2]Sys., 98 NY2d 345, 350 [2002]; cf. Nemchyonok v Peng Liu Ying, 2 AD3d 421 [2003]). The injured plaintiff's chiropractor also adequately established that the subsequent accident in 2001 did contribute to the injuries upon which the present action is based.
Decision Date: February 18, 2005