Houslin v Bartley

[*1] Houslin v Bartley 2008 NY Slip Op 50513(U) [19 Misc 3d 128(A)] Decided on March 6, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2007-176 Q C.

Alpheus Houslin, Jr., Respondent,

against

Clarence Bartley, Appellant, -and- Irelene Lewis-Harrison, Defendant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered October 5, 2006. The order denied defendant Clarence Bartley's motion for summary judgment.

Order modified by providing that defendant Clarence Bartley's motion for summary judgment is granted to the extent of awarding defendant Bartley partial summary judgment dismissing the first cause of action as against him; as so modified, affirmed without costs.

Defendant Clarence Bartley moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Defendant's motion did not address the second cause of action for property damage. The court below denied the motion, and the instant appeal ensued.

In support of the motion, the moving defendant's examining physicians submitted affirmations wherein they set forth the objective tests used to compare plaintiff's degrees of motion to a normal range of motion and their findings that plaintiff did not have any range of motion restrictions. Thus, defendant Bartley made a prima facie showing that plaintiff's injuries were not serious (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]).

The burden then shifted to plaintiff to come forward with sufficient evidence to overcome defendant's motion by demonstrating that he sustained a serious injury within the meaning of Insurance Law § 5102 (d). Plaintiff failed to meet his burden since the affidavit of his examining [*2]chiropractor and the sworn report of the treating physician failed to adequately account for plaintiff's prior motor vehicle accident and resulting injuries. Neither the chiropractor nor the physician indicated that he had reviewed, or attempted to review, any of the medical records from plaintiff's prior accident, but both apparently relied only on the medical history as related by plaintiff. Thus, both medical opinions were rendered speculative with regard to plaintiff's instant claim (see Pazmino v Universal Distribs., LLC, 45 AD3d 554, 555 [2007]; Vidor v Davila, 37 AD3d 826 [2007]; Moore v Sarwar, 29 AD3d 536 [2006]). We find that plaintiff's submissions were insufficient to establish that the injuries were the result of the accident at issue and, thus, insufficient to rebut defendant Bartley's prima facie showing that plaintiff did not suffer a serious injury. Accordingly, defendant Bartley's motion for summary judgment is granted to the extent of awarding him partial summary judgment dismissing the first cause of action seeking damages for personal injuries.

The disposition herein leaves unaffected plaintiff's cause of action for property damage to his vehicle.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 6, 2008