Basu v Wolff

[*1] Basu v Wolff 2007 NY Slip Op 52303(U) [17 Misc 3d 137(A)] Decided on November 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-1854 Q C.

Sumona Basu, Respondent,

against

Elizabeth Wolff, Appellant, -and- Peng Huai Chang, Oommen Jacob and Joel Jacob, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered May 17, 2006. The order, insofar as appealed from, denied the branch of defendant Elizabeth Wolff's cross motion for summary judgment which sought dismissal of the complaint as against her on the ground that plaintiff failed to sustain a "permanent consequential limitation of use of a body organ or member,"

or a "significant limitation of use of a body function or system" under Insurance law § 5102 (d).
Order, insofar as appealed from, reversed without costs and cross motion by defendant Elizabeth Wolff for summary judgment dismissing the complaint as against her granted.

Plaintiff, a passenger in a vehicle which was struck in the rear by defendant Elizabeth Wolff's vehicle, commenced this personal injury action. Insofar as is relevant to this appeal, defendants cross-moved for summary judgment on the ground that plaintiff did not sustain a [*2]serious injury. Defendant Wolff appeals from so much of the order as denied, in part, her cross motion. We note that the action against the remaining defendants was dismissed on the issue of liability.

In our opinion, the order, insofar as appealed from, should be reversed and defendant Wolff's cross motion for summary judgment dismissing the complaint as against her granted. One of the defendants submitted an unsworn report, from one of plaintiff's treating physicians, of an examination of plaintiff taken six months after the accident, approximately 3 1/2 years before the instant motion. It stated that range of motion of plaintiff's cervical spine was mildly painful and that range of motion of the lumbar spine was full and not restricted. The same defendant attached an unsworn report from plaintiff's radiologist which stated that plaintiff had a herniated disc at C4-C5. The defendant may rely on the unsworn medical report of plaintiff's doctor in support of her cross motion (Pagano v Kingsbury, 182 AD2d 268 [1992]; see also Fragale v Geiger, 288 AD2d 431 [2001]). One of the defendants also attached an affirmation from a doctor who examined plaintiff on that defendant's behalf and specified the degrees of range of motion of plaintiff's cervical and lumbar spine and concluded that the examination was normal. Defendant Wolff, thus, shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]). We note that in the absence of any objective evidence of a related disability or restriction, defendant Wolff's showing of the mere presence in plaintiff of a bulging or herniated disc is insufficient to negate her prima facie case (see Salawudeen v Barrone, 11 AD3d 444 [2004]; Scott v LaPointe, 13 Misc 3d 135[A], 2006 NY Slip Op 52036[U] [App Term, 2d & 11th Jud Dists]).

Plaintiff unsuccessfully opposed the cross motion. The plaintiff's physician, who last examined plaintiff approximately six months after the accident, made no findings based upon any recent examination (see Kauderer v Penta, 261 AD2d 365 [1999]; see also Young v Gonzalez, 19 AD3d 408 [2005]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 29, 2007