White v Glasgow

[*1] White v Glasgow 2005 NYSlipOp 50627(U) Decided on April 26, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
2004-1464 Q C

Omar White, Respondent,

against

Thomas Glasgow, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (T. Dufficy, J.), entered April 12, 2004, which denied his motion for summary judgment.

Order unanimously reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

Plaintiff was injured when, as a pedestrian, he was struck by an automobile on November 4, 1998. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d).

The affirmed medical report submitted by defendant made out a prima facie case
that plaintiff did not sustain a serious injury. It stated that plaintiff had a resolved low back strain, resolved right knee contusion and resolved right elbow contusion. This shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff unsuccessfully opposed the motion. The plaintiff's doctor in his follow-up examination four years after the accident did not designate a numeric percentage of plaintiff's loss of range of motion of his spine or provide a qualitative assessment of his physical condition, having an objective basis and comparing plaintiff's limitations to the normal function, purpose and use of his spine (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). The only qualitative assessment by plaintiff's doctor involved an examination performed two days after the [*2]accident.
Decision Date: April 26, 2005