Murray v Woods Locksmith Inc.

[*1] Murray v Woods Locksmith Inc. 2005 NY Slip Op 51697(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: 9th and 10th JUDICIAL DISTRICTS
PRESENT: October 20, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., McCABE and COVELLO, JJ.
2004-983 N C

ROBERT MURRAY, Appellant,

against

WOODS LOCKSMITH INC., and DONALD G. SAGSTETTER, Respondents.

Appeal by plaintiff from an order of the District Court, Nassau County (K. Gartner, J.), entered December 1, 2003, which granted defendants' motion for summary judgment.

Order reversed without costs and defendants' motion for summary judgment denied.

The medical evidence submitted by defendants in support of their motion for summary judgment made out a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). One of defendants' doctors reviewed plaintiff's MRIs and concluded that the disc bulges were degenerative and were not caused by 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 presenting evidence that he sustained a serious injury. He submitted an affirmation from his treating physician who presented a qualitative assessment of plaintiff's condition which had an objective basis and compared plaintiff's limitations of motion of his lumbosacral and cervical spines to normal function (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Pesce v Tillotson, 7 AD3d 597 [2004]). The unsworn MRI reports prepared by plaintiff's physician showing bulging discs which defendant's doctors referred to in support of their motion for summary judgment are admissible (Pommells v Perez, 4 NY3d 566 [2005]; Pagano v Kingsbury, 182 AD2d 268 [1992]; [*2]see also Fragale v Geiger, 288 AD2d 431 [2001]).

Finally, it is noted that the almost 16 month cessation of treatment was explained sufficiently to raise an issue of fact (Pommells v Perez, 4 NY3d 566, supra).

Rudolph, P.J., and McCabe, J. concur.

Covello, J., taking no part.
Decision Date: October 20, 2005