Maslowski v Gianella

[*1] Maslowski v Gianella 2005 NY Slip Op 51887(U) [10 Misc 3d 126(A)] Decided on November 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 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.
2005-220 Q C

Katherine Maslowski, Appellant,

against

Rollin Gianella, Defendant, -and- HUGH MINCHALA and JORGE R. GARCIA, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Valerie Braithwaite-Nelson, J.), entered November 24, 2004. The order granted the motion by defendants Hugh Minchala and Jorge R. Garcia for summary judgment.

Order affirmed without costs.

The affirmed medical reports submitted by defendants Hugh Minchala and Jorge R. Garcia made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). One of the doctors stated that after conducting tests, he found no evidence of a disability from a neurological perspective and that there was no obstacle to plaintiff's pursuit of her usual daily activities including those required by her occupation. 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's doctor did not designate a numeric percentage of her loss of range of motion of her cervical and lumbar spine or provide a qualitative assessment of her physical condition compared to her normal function, purpose and use of her cervical and lumbar spine (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [*2][2002]). Finally, plaintiff failed to raise a triable issue of fact as to whether her injuries prevented her from performing substantially all of her customary and usual activities during at least 90 of the 180 days following the accident (see Francis v Christopher, 302 AD2d 425 [2003]).

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., dissents in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.

Golia, J., dissents and votes to reverse the order and deny defendants Minchala's and Garcia's motion for summary judgment.

I agree with the majority that the proof offered by defendants upon their motion for summary judgment to dismiss pursuant to Insurance Law § 5102 (d) for lack of a "serious injury" was sufficient to shift the burden to plaintiff. Contrary to the finding by the majority, I find that the report by plaintiff's doctor, David Zelefsky, M.D., was sufficient to establish that the plaintiff suffered from a medically determined injury which was caused by the underlying accident. That medically determined injury, when coupled with the plaintiff's affidavit claiming that she could not perform most of her daily activities for a period of 90 of the first 180 days, was sufficient to raise a triable issue of fact that plaintiff suffered a "serious injury" as defined by § 5101 (d) of the Insurance Law.
Decision Date: November 04, 2005