Mulchinski v Swawite

[*1] Mulchinski v Swawite 2005 NY Slip Op 51897(U) [10 Misc 3d 127(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2005-38 Q C

Jo Ann Mulchinski, Appellant,

against

Marvin J. Swawite and Marsha Swawite, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Siegal, J.), entered October 27, 2004. The order granted defendants' motion for summary judgment.

Order unanimously modified to the extent of denying defendants' motion for summary judgment in regard to the 90/180 day category of Insurance Law § 5102 (d) and the action for economic loss in excess of basic economic loss; as so modified, affirmed without costs.

Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). The defendants presented the affirmation of a doctor who examined plaintiff, at the request of her no-fault carrier, six months after the accident. He stated that plaintiff is a special education teacher and many of her students are in wheelchairs. He concluded that she has a total temporary disability, cannot lift up the children she has in her classes and has not worked since the day of the accident.

Defendants' attorney also attached the unsworn report of one of the plaintiff's treating physicians who examined her three months after the accident and found that she was unemployable. Said unsworn report submitted in support of defendants' motion for summary judgment is admissible (Pagano v Kingsbury, 182 AD2d 268 [1992]; see also Fragale v Geiger, 288 AD2d 431 [2001]). In view of the foregoing, defendants failed to shift the burden in regard to the 90/180 category of the statute and the sufficiency of the papers in opposition need not be considered on this issue (Aronov v Leybovich, 3 AD3d 511 [2004]). We therefore modify the order by denying so much of defendants' motion as related to said category and reinstating the [*2]complaint with respect thereto (Fortino v Fayetteville-Manlius Cent. School Dist., 16 AD3d 1124 [2005]).

Moreover, there is a triable issue of fact with regard to whether as a result of the accident, plaintiff sustained economic loss in excess of basic economic loss, for which [*3]
loss plaintiff may recover without proof of serious injury (Colvin v Slawoniewski, 15 AD3d 900 [2005]; Tortorello v Landi, 136 AD2d 545 [1988]).

Finally, it is noted that the court properly granted defendants' motion for summary judgment in regard to the other serious injury categories of the statute. The affirmed medical reports submitted by defendants stated that her injuries pre-existed the accident or that they were resolved. This shifted the burden to plaintiff to raise a triable issue of fact on the threshold issue (see Gaddy v Eyler, 79 NY2d 955 [1992]).

In the case at bar, the plaintiff unsuccessfully opposed the motion. The plaintiff's doctors neither designated a numeric percentage of plaintiff's loss of range of motion nor provided a qualitative assessment of her condition by comparing her limitations to her normal function, purpose and use (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).
Decision Date: November 04, 2005