Khan v Sang Kwak

[*1] Khan v Sang Kwak 2006 NY Slip Op 50317(U) [11 Misc 3d 131(A)] Decided on March 2, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-651 Q C.

Saleema F. Khan, Appellant,

against

Sang Kwak, YONG IL PAK AND YANG KUM PAK, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), entered November 17, 2004. The order granted defendants Yong IL Pak's and Yang Kum Pak's motion for summary judgment, and defendant Sang Kwak's cross motion for summary judgment.

Order reversed without costs and motion by defendants Yong IL Pak and Yang Kum Pak, and cross motion by defendant Sang Kwak for summary judgment denied.

The affirmed medical report submitted by defendants made out a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). A doctor's affirmation submitted in support of the motion by defendants Yong IL Pak, and Yang Kum Pak, and adopted by defendant Sang Kwak, specified the degrees of range of motion of plaintiff's cervical spine and lumbar spine, and concluded that "claimant's examination is normal." This shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff successfully opposed the motion by presenting evidence that she sustained a serious injury. She submitted an affirmation from her treating physician who presented a qualitative assessment of plaintiff's condition which had an objective basis and compared plaintiff's limitation of motion of her lumbar and cervical spines to normal function (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Pesce v Tillotson, 7 AD3d 597 [2004]). Accordingly, the motion and cross motion by the defendants should have been denied. [*2]

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: March 2, 2006