Jones v Jeffries

[*1] Jones v Jeffries 2007 NY Slip Op 51075(U) [15 Misc 3d 142(A)] Decided on May 24, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-760 Q C. NO. 2006-760 Q C

Quincy Jones, Respondent,

against

Cornelia J. Jeffries, Defendant, -and- Maurice B. Chandon and New York City Transit Authority, Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered November 3, 2005. The order, insofar as appealed from as limited by their brief, denied the motion by defendants Maurice B. Chandon and New York City Transit Authority for summary judgment.

Order affirmed without costs.

The medical evidence submitted by defendants Maurice B. Chandon and the New York City Transit Authority in support of their motion for summary judgment failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The affirmations of two doctors merely determined that the ranges of motion of plaintiff's cervical and lumbar spines were normal but did not set forth what objective testing was done to support that determination in regard to plaintiff's cervical spine, thus rendering it conclusory (Cedillo v Rivera, ___ AD3d ___, 2007 NY Slip Op 02872; Schacker v County of Orange, 33 AD3d 903 [2006]). Since the moving defendants failed to establish their prima facie entitlement to judgment as a matter of law, we need not address the sufficiency of plaintiff's opposition (see McLaughlin v Rizzo, 38 AD3d 856 [2007]).

Pesce, P.J., Weston Patterson, J., concur. [*2]

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views. Most specifically, I believe that a doctor's medical determination after conducting "objective" tests that the results were "normal" is, in fact, an objective and specific finding.

Therefore, I find that defendants met their initial burden of showing that the plaintiff failed to establish a serious injury as required by section 5106 of the Insurance Law.

I further find, however, that plaintiff's opposing papers sufficiently overcomes that determination and mandates a denial of defendants' motion.
Decision Date: May 24, 2007