Vanatta v Chung Chen Huang

[*1] Vanatta v Chung Chen Huang 2007 NY Slip Op 51314(U) [16 Misc 3d 130(A)] Decided on June 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1614 N C.

Diane M. Vanatta, Respondent,

against

Chung Chen Huang, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Howard S. Miller, J.), entered September 12, 2006. The order denied defendant's motion for summary judgment.

Order affirmed without costs.

The medical evidence submitted by defendant in support of his motion for summary judgment made out a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The movant's doctors measured the range of motion of plaintiff's spine, listing specific degrees of flexion, extension and
rotation, and stated that plaintiff's range of motion was normal. One of the doctors also stated that straight leg raising was bilaterally negative. Both doctors concluded that plaintiff had no current disability. The burden, therefore, shifted to plaintiff to raise a triable issue of fact that she sustained a serious injury (Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff successfully opposed the motion. Plaintiff's treating physician presented qualitative assessments of plaintiff's condition which had an objective basis and compared plaintiff's limitations of motion of her cervical and lumbar spine to normal function (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Pesce v Tillotson, 7 AD3d 597 [2004]). The two year cessation of treatment was explained by plaintiff's treating physician who stated that [*2]plaintiff stopped treatment because she had reached her maximum improvement through a conservative course of managed care. Accordingly, plaintiff raised an issue of fact sufficient to defeat defendant's motion for summary judgment (Pommells v Perez, 4 NY3d 566 [2005]).

It is noted that the court did not improvidently exercise its discretion in granting plaintiff a continuance for a reasonable time so that she could obtain a current medical
evaluation of her condition (see CPLR 3212 [f]; see generally Brusco v Davis-Klages, 302 AD2d 674 [2003]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 29, 2007