Prokopenko v Abrams

[*1] Prokopenko v Abrams 2005 NY Slip Op 50249(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: 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.
2003-1733 K C

Arthur Prokopenko, Appellant,

against

Jay Abrams and RYDER TRUCK RENTAL, Respondents, -and- FREDERICK SINDONA and CARMODY INC., Defendants.

Appeal by plaintiff from an order of the Civil Court, Kings County (D. Silber, J.), entered on October 3, 2003, which granted the motion by defendants Jay Abrams and Ryder Truck Rental for summary judgment.

Order unanimously affirmed without costs.

In support of defendants Abrams' and Ryder Truck Rental's motion for summary judgment, defendants' doctor submitted an affirmation in which he stated that he reviewed plaintiff's medical records. He examined plaintiff and found that his [*2]
movements appeared to be "supple, without guarding or pain." The range of motion of plaintiff's back was normal. Straight leg raising was negative. This was sufficient to shift the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]; Mack v Goodrich, 11 AD3d 846 [2004]).

The plaintiff unsuccessfully opposed the motion. We note that on appeal, plaintiff's sole contention is that defendants failed to shift the burden to plaintiff, which contention we find to lack merit.
Decision Date: March 02, 2005