Gilman v Cohen

[*1] Gilman v Cohen 2005 NYSlipOp 50436(U) Decided on March 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-1052 N C

DAVID GILMAN and KATHLEEN GILMAN, Appellants,

against

MERYL P. COHEN and ALAN R. COHEN, Respondents.

Appeal by plaintiffs from an order of the District Court, Nassau County (D. Gross, J.), entered May 4, 2004, which granted defendants' motion for summary judgment dismissing the complaint and denied as moot plaintiffs' cross motion for summary judgment on the issue of liability.

Order unanimously affirmed without costs.

The medical evidence submitted by defendants 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). Defendants thereby shifted the burden to plaintiffs to raise a triable issue of fact with respect to whether the injured plaintiff sustained a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]). [*2]

The injured plaintiff's doctor's qualitative assessment of his condition of limitation of motion was not supported by objective medical proof (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [1992]). Accordingly, plaintiffs' opposition papers failed to raise a triable issue of fact with regard thereto. Moreover, the injured plaintiff failed to establish that his injuries were caused by the accident.

Since the defendants' motion for summary judgment was granted, the plaintiffs' cross motion for summary judgment on the issue of liability was properly denied as moot.
Decision Date: March 31, 2005