Russo v Lin Ke Chang

[*1] Russo v Lin Ke Chang 2005 NY Slip Op 51904(U) [10 Misc 3d 128(A)] Decided on November 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 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.
2005-71 K C

Michelle Russo, Respondent,

against

Lin Ke Chang, Defendant, -and- HONG JUAN LIANG Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered December 6, 2004. The order, insofar as appealed from, denied defendant Liang's cross motion for summary judgment.

Order, insofar as appealed from, unanimously affirmed without costs.

Defendant Chang moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Defendant Liang cross-moved for summary judgment adopting all of the factual assertions and legal arguments contained in defendant Chang's moving papers. The motion and cross motion were denied and defendant Liang appeals.

The medical evidence submitted by the defendants in support of their motion and cross motion for summary judgment made out a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmed medical reports submitted by the defendants set forth objective tests and found no limitation of motion of plaintiff's cervical spine. The burden, therefore, shifted to plaintiff to raise a triable issue of fact that she sustained a serious injury (see Gaddy v Eyler, 79 NY2d 955, supra).

The plaintiff successfully opposed the motion by presenting evidence that she sustained a [*2]serious injury. She submitted an affirmation from a physician who presented a qualitative assessment of plaintiff's condition which had an objective basis and compared plaintiff's limitation of motion of her cervical spine to normal function (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). [*3]

It is noted that the defendants have made a showing of good cause for the delay in making the motion in that there was discovery outstanding when the note of issue was filed and the defendant moved promptly to make this motion after discovery was completed (CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]).
Decision Date: November 21, 2005