Belot v United Parcel Serv., Inc.

[*1] Belot v United Parcel Serv., Inc. 2005 NY Slip Op 51691(U) [9 Misc 3d 136(A)] Decided on October 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
2005-301 Q C

RODRIGUE BELOT, Appellant,

against

UNITED PARCEL SERVICE, INC. and ANDERSON FORTE, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Siegal, J.), entered October 20, 2004. The order granted defendants' motion for summary judgment.

Order unanimously modified by providing that defendants' motion for summary judgment is granted only to the extent of dismissing plaintiff's personal injury cause of action; as so modified, affirmed without costs.

The affirmed medical reports submitted by defendants made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Defendants' doctor stated that plaintiff had resolved lumbar and cervical sprains and strains. 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. Plaintiff ended his treatment six months after the accident. Three years later, a chiropractor examined plaintiff in connection with this case and, in an affidavit submitted in opposition to the instant motion, relied upon unsworn reports by a doctor who had treated plaintiff. The plaintiff provided no adequate explanation as to why he failed to pursue any treatment for his injuries after the initial six months. In view of the foregoing, the court properly granted defendants' motion for summary judgment insofar as it dismissed the personal injury cause of action (Pommells v Perez, 4 NY3d 566 [2005]).

We note that the court should not have dismissed plaintiff's cause of action for property damage to his 1993 Toyota, which cause of action survives this motion.
Decision Date: October 20, 2005