From Casetext: Smarter Legal Research

Barsalone v. New York City Transit Authority

Appellate Division of the Supreme Court of New York, Second Department
Nov 24, 2003
1 A.D.3d 548 (N.Y. App. Div. 2003)

Opinion

2002-10740.

Submitted October 22, 2003.

November 24, 2003.

In an action to recover damages for personal injuries, the defendant New York City Transit Authority appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated September 16, 2002, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Wallace D. Gossett (Steven S. Efron, P.C., New York, N.Y. [Renee L. Cyr] of counsel), for appellant.

Bruce S. Reznick (Pollack, Pollack, Isaac De Cicco, New York, N.Y. [Christopher J. Crawford and Brian J. Isaac] of counsel), for respondent.

Before: Anita R. Florio, J.P., Gabriel M. Krausman, Daniel F. Luciano, Sandra L. Townes and Reinaldo E. Rivera, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the appellant; and it is further,

ORDERED that upon searching the record, summary judgment is granted to the defendant John Doe, and the complaint is dismissed insofar as asserted against that defendant.

The appellant made out a prima facie case that the plaintiff's injuries were not serious within the meaning of Insurance Law § 5102(d) through the affirmed medical report of an orthopedist who examined the plaintiff and concluded that she had not sustained any disability ( see Gaddy v. Eyler, 79 N.Y.2d 955).

The affirmation prepared by the plaintiff's treating physician which was submitted in opposition to the motion failed to raise a triable issue of fact. The plaintiff's physician failed to set forth the objective tests he performed in arriving at his conclusions concerning the alleged restrictions of motion in the plaintiff's arm and shoulder ( see Grossman v. Wright, 268 A.D.2d 79) . Furthermore, the physician failed to address the impact of the pre-existing arthritic condition in the plaintiff's shoulder on the alleged restrictions of motion ( see Dimenshteyn v. Caruso, 262 A.D.2d 348).

FLORIO, J.P., KRAUSMAN, LUCIANO, TOWNES and RIVERA, JJ., concur.


Summaries of

Barsalone v. New York City Transit Authority

Appellate Division of the Supreme Court of New York, Second Department
Nov 24, 2003
1 A.D.3d 548 (N.Y. App. Div. 2003)
Case details for

Barsalone v. New York City Transit Authority

Case Details

Full title:MARIE A. BARSALONE, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 24, 2003

Citations

1 A.D.3d 548 (N.Y. App. Div. 2003)
767 N.Y.S.2d 669