Michel v Demasi

[*1] Michel v Demasi 2005 NY Slip Op 51744(U) [9 Misc 3d 137(A)] Decided on October 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 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.
2004-693 K C

Nola Michel and RONALD MICHEL, Appellants,

against

Steven Demasi and NYNEX, Respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sarah L. Krauss, J.), entered on April 1, 2004. The order granted defendants' motion for summary judgment dismissing the complaint.

Order unanimously affirmed without costs.

The medical evidence submitted by defendants in support of their motion for
summary judgment made out a prima facie case that the injured plaintiff did not sustain
a serious injury within the meaning of Insurance Law § 5102 (d). Defendants thereby
shifted the burden to plaintiffs to raise a triable issue of fact with respect to whether the injured plaintiff sustained a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiffs' opposition was insufficient to raise a triable issue of fact. While the five-year-gap in treatment was explained by the injured plaintiff, her doctor's assessment of plaintiff's limitation of motion more than five years after the accident failed to address the effect on plaintiff's range of motion caused by three operations, which he noted in plaintiff's medical history, involving a colon resection performed on plaintiff in 2002, approximately four years after the accident and approximately one year before his examination. His submission left unanswered the question whether the loss of forward flexion in the lumbar spine, which was the only limitation mentioned, might have been caused by these intervening events (Pommells v Perez, 4 NY3d 566 [2005]).
Decision Date: October 21, 2005