From Casetext: Smarter Legal Research

Dan v. Winiski

Appellate Term of the Supreme Court of New York, Second Department
Jul 21, 2005
2005 N.Y. Slip Op. 51168 (N.Y. App. Term 2005)

Opinion

2004-1472 Q C.

Decided July 21, 2005.

Appeal by defendant from an order of the Civil Court, Queens County (T. Dufficy, J.), entered on July 2, 2004, which denied his motion for summary judgment.

Order unanimously affirmed without costs.

Before: PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.


The medical evidence submitted by defendant in support of his motion for summary judgment made out a prima facie case that the plaintiff did not satisfy the threshold requirement of suffering a serious injury within the meaning of Insurance Law § 5102 (d). One of the defendant's doctors conducted tests and found no limitation of motion of plaintiff's cervical and lumbar spines as well as no limitation of motion of his right shoulder. Defendant's radiologist found that the disc bulges at L4-L5 and C6-C7 were degenerative and existed before the accident. The burden, therefore, shifted to the plaintiff to raise a triable issue of fact that he sustained a serious injury ( see Gaddy v. Eyler, 79 NY2d 955). The plaintiff successfully opposed the motion by submitting an affidavit from his treating chiropractor who described the objective tests performed and plaintiff's numeric limitations of motion of his lumbosacral and cervical spines. He stated that the limitations of motion were causally related to the trauma received in the subject motor vehicle accident. He also submitted an affirmation from a Workers' Compensation doctor describing plaintiff's numeric limitation of use of his right arm ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350).


Summaries of

Dan v. Winiski

Appellate Term of the Supreme Court of New York, Second Department
Jul 21, 2005
2005 N.Y. Slip Op. 51168 (N.Y. App. Term 2005)
Case details for

Dan v. Winiski

Case Details

Full title:JON DAN, Respondent, v. THOMAS M. WINISKI, Appellant

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

Date published: Jul 21, 2005

Citations

2005 N.Y. Slip Op. 51168 (N.Y. App. Term 2005)