Saintilus v Greaves

[*1] Saintilus v Greaves 2005 NY Slip Op 52121(U) [10 Misc 3d 135(A)] Decided on December 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ.
2005-824 Q C

Morales Saintilus, Respondent,

against

Burnett M. Greaves, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan J.), entered April 9, 2004. The order denied defendant's cross motion for summary judgment.

Order unanimously reversed without costs and defendant's cross motion for summary judgment dismissing the complaint granted.

Defendant cross-moved for summary judgment on the ground that the plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). Defendant submitted affirmations from two doctors who examined the plaintiff on defendant's behalf approximately three years after the accident and found that there was full range of motion in plaintiff's cervical spine and lumbar spine. One of defendant's doctors stated that the straight leg raising was bilaterally full and pain free. Straight leg raising tests are objective evidence of serious injury (Brown v Achy, 9 AD3d 76 [2004]). One of the doctors referred to an MRI performed by plaintiff's doctor three years before the accident which showed that plaintiff had disc herniations at C4-C5 and C5-C6. The defendant may rely on the unsworn medical reports of plaintiff's doctor in support of his cross motion (see Fragale v Geiger, 288 AD2d 431 [2001]; Pagano v Kingsbury, 182 AD2d 269 [1992]). Defendant's other doctor noted that plaintiff had been in three prior accidents wherein he injured his cervical spine and lumbar spine. Consequently, defendant's submissions shifted the burden to plaintiff to raise [*2]a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

Plaintiff's opposition to the motion was insufficient. There is nothing in the report of plaintiff's physician to indicate that he took into account the fact that plaintiff had injured his neck and back in three prior accidents (see Franchini v Palmieri, 1 NY3d 536
[2003]; Howell v Reupke, 16 AD3d 377 [2005]). Furthermore, the plaintiff's papers failed to offer a satisfactory explanation for the three year gap between the end of plaintiff's chiropractic treatment and the physician's examination (Sibrizzi v Davis, 7 AD3d 691 [2004]).
Decision Date: December 13, 2005