Petrogalis v Pascocello

[*1] Petrogalis v Pascocello 2005 NYSlipOp 51166(U) Decided on July 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON AND RIOS, JJ.
2004-1407 K C

Oleg Petrogalis, Plaintiff,

against

Angelo Pascocello, CHAVES LARA MICHELLE DEITMAN, HOWARD DEITMAN and ANATOLIY SUSLOVICH, Defendants. ALEX KASSIKO,

Respondent,-against- ANATOLIY SUSLOVICH, Appellant.

Appeal by defendant Anatoliy Suslovich in action Number 2 from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered July 9, 2003, which denied his motion for summary judgment. [*2]

Order unanimously reversed without costs and defendant's motion for summary judgment in Action Number 2 dismissing the complaint granted.

On August 22, 2001, the parties in Action Number 1 stipulated to discontinue that action.

The affirmed medical reports submitted by defendant made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). They stated that plaintiff had full range of motion of his cervical and lumbar spines. One of the reports also stated that plaintiff had lumbar and cervical sprains that were resolved. This shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff's opposition was insufficient to raise a triable issue of fact. Plaintiff's doctor's assessment of plaintiff's limitation of motion more than five years after the accident was not supported by objective medical proof (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). Furthermore, plaintiff also failed to submit medical proof in admissible form that was contemporaneous with the accident showing any

initial range of motion restrictions in his spine (Nemchyonok v Peng Liu Ying, 2 AD3d 421 [2003]; Elabtah AL Holding Corp., Vt., Inc., 4 Misc 3d 131[A], 2004 NY Slip Op 50701[U] [App Term, 2d & 11th Jud Dists]).
Decision Date: July 21, 2005