Paladines v Markou

[*1] Paladines v Markou 2007 NY Slip Op 51966(U) [17 Misc 3d 129(A)] Decided on September 28, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-990 Q C.

Luis Paladines, JUAN BATISTA, LOUIS BOBEA, JONATHAN BOBEA by his father and natural guardian LOUIS BOBEA and JOSE BATISTA by his mother and natural guardian LUCIA BATISTA, Respondents,

against

Joann Markou and ANDREAS KARAPOTIAS, Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Johnny Lee Baynes, J.), entered April 13, 2006. The order denied defendants' cross motion for summary judgment as against each plaintiff.

Order modified by providing that defendants' cross motion for summary judgment is granted to the extent of dismissing the causes of action of plaintiffs Louis Bobea, Jonathan Bobea and Jose Batista, and by dismissing the personal injury cause of action of plaintiff Luis Paladines; as so modified, affirmed without costs.

Insofar as is relevant to this appeal, the defendants cross-moved for summary judgment dismissing the complaint on the ground that each plaintiff did not satisfy the threshold requirement of suffering a serious injury pursuant to Insurance Law § 5102 (d). Defendants submitted affirmations from two doctors who examined plaintiffs Luis Paladines, Louis Bobea, Jonathan Bobea and Jose Batista on defendants' behalf approximately two years after the accident. The examining physicians found that there was full range of motion of each plaintiff's [*2]lumbar and cervical spine and that their injuries were resolved. This shifted the burden to these four plaintiffs to raise a triable issue of fact (Gaddy v Eyler, 79 NY2d 955 [1992]). Since these plaintiffs did not oppose the motion, defendants' cross motion for summary judgment should have been granted as to said plaintiffs' personal injury causes of action.

However, the defendants failed to make a prima facie showing that plaintiff Juan Batista did not sustain a serious injury. Despite the conclusion of one of defendants' examining physicians that Juan Batista did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), the doctor found various limitations of motion of Juan Batista's lumbar spine. Accordingly, defendants failed to shift the burden to plaintiff Juan Batista (see Tchjevskaia v Chase, 15 AD3d 389 [2005]; Johnson v
Springer, 14 Misc 3d 145[A], 2007 NY Slip Op 50399[U] [App Term, 2d & 11th Jud Dists]) and their motion for summary judgment as to him was properly denied.

It is noted that plaintiff Luis Paladines' cause of action for property damage to his automobile is unaffected by the determination herein.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: September 28, 2007