Fernandez v Salonger

[*1] Fernandez v Salonger 2004 NY Slip Op 51716(U) Decided on September 27, 2004 Supreme Court, Queens County Golia, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2004
Supreme Court, Queens County

JUAN FERNANDEZ, et al., Plaintiff,

against

SYLVIA SALONGER, Defendant.



7293/02

Joseph G. Golia, J.

The proponent of a motion for summary judgment, where the issue is whether a plaintiff has sustained a serious injury as defined by Insurance Law § 5102[d], has the initial [*2]burden of establishing, by competent evidence, that a plaintiff did not sustain a serious injury causally related to the subject accident (Franchini v Palmieri, 1 NY3d 536 [2003]). Once a defendant meets this initial threshold, the burden shifts to the plaintiffs to offer proof, in admissible form, which creates a material issue of fact requiring a trial (Id).

Defendant met her initial burden of demonstrating prima facie that neither of the two plaintiffs sustained a serious injury in the subject accident with the affirmed reports of doctors Farkas and Feuer. Dr. Farkas, an orthopedic surgeon, reports that both plaintiffs' cervical and lumbar sprains are resolved, that plaintiff Juan Fernandez' contusion to the left calf is resolved and that plaintiff Catalina Fernandez' right knee sprain is resolved.

Dr. Feuer conducted a neurological examination of plaintiff Juan Fernandez on August 19, 2003 and conducted a neurological examination of plaintiff Catalina Fernandez on August 26, 2003. Dr. Feuer affirms that the neurological examination of both plaintiffs are "presently within normal limits," and that the plaintiffs do not demonstrate any objective neurological disability.

In opposition, the plaintiffs submitted the affirmed medical reports of Dr. Donald I. Goldman, an orthopedic physician who examined the plaintiffs on July 6, 2004. With respect to Juan Fernandez, Dr. Goldman affirms, inter alia, that straight leg raising tests on the right and left of the lumbar spine were both positive at approximately 45-50 degrees. Regarding Catalina Fernandez' alleged injury to her lumbar spine, Dr. Goldman affirms that "straight leg raising on the right was positive at 60 degrees, and on the left was positive at 45 degrees." Further, Dr. Goldman notes that this plaintiff suffers from "cervical nerve radiculopathy resulting in a painful functional restriction of motion by more than 30 percent based upon objective findings using a Goniometer." Dr. Goldman causally relates the plaintiffs' injuries to the subject accident. As straight-leg-raising tests are objective evidence of serious injury under the no-fault law (see, Risbrook v Coronamos Cab Corp., 244 AD2d 397 [1997]; Kim v Cohen, 208 AD2d 807 [1994]; Gaddy v Eyler, 167 AD2d 67, affd. 79 NY2d 955 [1992]), the reports of Dr. Goldman are sufficient to raise triable issues of fact as to the seriousness of plaintiffs' injuries.

Dated: ____________________

J.S.C.