Agunloye v Lewis

[*1] Agunloye v Lewis 2005 NY Slip Op 50246(U) Decided on March 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-817 K C

Olushola M. Agunloye, Respondent,

against

Gilroy E. Lewis, Appellant.

Appeal by defendant, as limited by his brief, from so much of an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered on December 2, 2003, granting plaintiff's motion to vacate an order which had granted defendant's prior motion for summary judgment on default, as, upon vacatur, denied defendant's underlying motion for summary judgment.

Order insofar as appealed from affirmed without costs.

The affirmed medical reports submitted by defendant's medical experts in support of defendant's underlying motion for summary judgment made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d).
This shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff's motion papers were sufficient to raise a triable issue of fact. Plaintiff's chiropractor stated that at his most recent examination of the plaintiff on March 28, 2003, he found certain restrictions in the plaintiff's range of motion. Specifically, the chiropractor reported, inter alia, that at that time, he objectively tested and measured significant limitations of motion in the plaintiff's lumbosacral spine. These decreases in the plaintiff's range of motion as found by the plaintiff's chiropractor in March 2003 were sufficient to raise a triable issue of fact as to whether the plaintiff suffered a serious injury (Nelms v Khokar, 12 AD3d 426 [2004]).

Pesce, P.J. and Golia, J., concur. [*2]

Patterson, J., taking no part.
Decision Date: March 02, 2005