From Casetext: Smarter Legal Research

Elgendy v. Nieradko

Appellate Division of the Supreme Court of New York, Second Department
Jul 7, 2003
307 A.D.2d 251 (N.Y. App. Div. 2003)

Opinion

2003-01353

Submitted June 11, 2003.

July 7, 2003.

In an action, inter alia, to recover damages for personal injuries, the defendants Andrezj Nieradko and Roger J. Fromme appeal from an order of the Supreme Court, Queens County (Schmidt, J.), dated February 3, 2003, which denied their motion for summary judgment dismissing the first cause of action insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

James P. Nunemaker, Jr., Uniondale, N.Y. (Kathleen E. Fioretti of counsel), for appellants.

Vitacco Vitacco, Elmhurst, N.Y. (Guy R. Vitacco of counsel), for respondent.

Before: DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, LEO F. McGINITY, SANDRA L. TOWNES, BARRY A. COZIER, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the first cause of action is dismissed insofar as asserted against the appellants.

The appellants established a prima facie entitlement to summary judgment dismissing the first cause of action insofar as asserted against them by submitting, among other things, affirmations of their examining physicians, which indicated that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) ( see Kallicharan v. Sooknanan, 282 A.D.2d 573; Santoro v. Daniel, 276 A.D.2d 478). Thus, it was incumbent on the plaintiff to come forward with admissible evidence to raise a triable issue of fact ( see Gaddy v. Eyler, 79 N.Y.2d 955, 957). The plaintiff failed to meet his burden. The affidavit of the plaintiff's chiropractor submitted in opposition to the motion indicated that the opinion expressed therein was based on a medical examination conducted over two years earlier rather than upon a recent examination ( see Diaz v. Wiggins, 271 A.D.2d 639; Kosto v. Bonelli, 255 A.D.2d 557; Glielmi v. Banner, 254 A.D.2d 255). The chiropractor's projections of permanent limitations had no probative value in the absence of a recent examination ( see McKinney v. Lane, 288 A.D.2d 274; Hand v. Bonura, 283 A.D.2d 608).

RITTER, J.P., FEUERSTEIN, McGINITY, TOWNES and COZIER, JJ., concur.


Summaries of

Elgendy v. Nieradko

Appellate Division of the Supreme Court of New York, Second Department
Jul 7, 2003
307 A.D.2d 251 (N.Y. App. Div. 2003)
Case details for

Elgendy v. Nieradko

Case Details

Full title:ELMETWALLY M. ELGENDY, respondent, v. ANDREZJ NIERADKO, ET AL.…

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

Date published: Jul 7, 2003

Citations

307 A.D.2d 251 (N.Y. App. Div. 2003)
762 N.Y.S.2d 275

Citing Cases

Wright v. Rodriguez

In opposition, the plaintiffs failed to raise a triable issue of fact. As to the plaintiff Raquel Wright,…

Wesley v. Crown Masonry Constr., Inc.

Moreover, Dr. Paci's report fails to address plaintiff's other allegations that she sustained injuries to her…