Dan v Winiski

[*1] Dan v Winiski 2005 NYSlipOp 51168(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2004-1472 Q C

Jon Dan, Respondent,

against

Thomas M. Winiski, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (T. Dufficy, J.), entered on July 2, 2004, which denied his motion for summary judgment.

Order unanimously affirmed without costs.

The medical evidence submitted by defendant in support of his motion for summary judgment made out a prima facie case that the plaintiff did not satisfy the threshold requirement of suffering a serious injury within the meaning of Insurance Law § 5102 (d). One of the defendant's doctors conducted tests and found no limitation of motion of plaintiff's cervical and lumbar spines as well as no limitation of motion of his right shoulder. Defendant's radiologist found that the disc bulges at L4-L5 and C6-C7 were degenerative and existed before the accident. The burden, therefore, shifted to the plaintiff to raise a triable issue of fact that he sustained a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]). The plaintiff successfully opposed the motion by submitting an affidavit from his treating chiropractor who described the objective
tests performed and plaintiff's numeric limitations of motion of his lumbosacral and cervical spines. He stated that the limitations of motion were causally related to the trauma received in the subject motor vehicle accident. He also submitted an affirmation from a Workers' Compensation doctor describing plaintiff's numeric limitation of use of his right arm (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).
Decision Date: July 21, 2005