Lamar v. Anastasi

5 Citing cases

  1. Henderson v. Cuyler

    207 A.D.3d 1208 (N.Y. App. Div. 2022)   Cited 1 times

    We agree with defendant that Supreme Court should have granted his motion in its entirety, and we reverse the order insofar as appealed from. "On a motion for summary judgment dismissing a complaint that alleges serious injury under Insurance Law § 5102 (d), the defendant bears the initial burden of establishing by competent medical evidence that [the] plaintiff did not sustain a serious injury caused by the accident" ( Gonyou v. McLaughlin , 82 A.D.3d 1626, 1627, 918 N.Y.S.2d 922 [4th Dept. 2011] [internal quotation marks omitted]; seeCohen v. Broten , 197 A.D.3d 949, 950, 150 N.Y.S.3d 656 [4th Dept. 2021] ; Lamar v. Anastasi , 188 A.D.3d 1637, 1637, 135 N.Y.S.3d 717 [4th Dept. 2020] ). We agree with defendant that he met his initial burden on the motion by submitting the affidavit of a physician who reviewed plaintiff's imaging studies, medical records and medical history and opined that plaintiff sustained only "temporary soft tissue contusions (bruises) of the left hip and ribs as a result of the accident," which do not constitute serious injury (see e.g.Kracker v. O'Connor , 158 A.D.3d 1324, 1325, 70 N.Y.S.3d 730 [4th Dept. 2018] ; Williams v. Jones , 139 A.D.3d 1346, 1347, 31 N.Y.S.3d 348 [4th Dept. 2016] ), and that any other residual alleged injuries were caused by "pre-existing conditions" (seePerl v. Meher , 18 N.Y.3d 208, 218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ; Lamar , 188 A.D.3d at 1637-1638, 135 N.Y.S.3d 717 ).

  2. Abate v. Wolf

    219 A.D.3d 1118 (N.Y. App. Div. 2023)   Cited 5 times

    Also in appeal No. 1, contrary to Tubiolo's contention on his appeal, the court properly granted Black Wolf's motion for summary judgment dismissing his complaint against her. Black Wolf met her initial burden on her motion of establishing by competent medical evidence that Tubiolo did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident (seeHenderson v. Cuyler , 207 A.D.3d 1208, 1208, 171 N.Y.S.3d 682 [4th Dept. 2022] ; Lamar v. Anastasi , 188 A.D.3d 1637, 1637-1638, 135 N.Y.S.3d 717 [4th Dept. 2020] ; see generallyPerl v. Meher , 18 N.Y.3d 208, 218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ). In opposition to the motion, Tubiolo submitted the affirmation of his treating physician who opined that Tubiolo suffered injuries to his cervical and thoracic spine as a result of the accident that constitute both a significant limitation of use of a body function or system and a permanent consequential limitation of use of a body organ or member, but the treating physician's opinion was based solely upon Tubiolo's subjective complaints of pain.

  3. Banas v. Waikiki

    216 A.D.3d 1413 (N.Y. App. Div. 2023)

    Preliminarily, we note that, as limited by his brief, plaintiff challenges the court's determination only with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury, and he has therefore abandoned his claim with respect to the 90/180-day category set forth in his bill of particulars (see Cline v Code, 175 A.D.3d 905, 907 [4th Dept 2019]; Harris v Campbell, 132 A.D.3d 1270, 1270 [4th Dept 2015]; see generally Ciesinski v Town of Aurora, 202 A.D.2d 984, 984 [1994]). "On a motion for summary judgment dismissing a complaint that alleges serious injury under Insurance Law § 5102 (d), the defendant bears the initial burden of establishing by competent medical evidence that [the] plaintiff did not sustain a serious injury caused by the accident" (Gonyou v McLaughlin, 82 A.D.3d 1626, 1627 [4th Dept 2011] [internal quotation marks omitted]; see Cohen v Broten, 197 A.D.3d 949, 950 [4th Dept 2021]; Lamar v Anastasi, 188 A.D.3d 1637, 1637 [4th Dept 2020]). Viewing the evidence in the light most favorable to plaintiff and affording him the benefit of every reasonable inference (see De Lourdes Torres v Jones, 26 N.Y.3d 742, 763 [2016]; Esposito v Wright, 28 A.D.3d 1142, 1143 [4th Dept 2006]), we conclude that defendant failed to meet that burden with respect to the remaining categories of serious injury (see Tate v Brown, 125 A.D.3d 1397, 1397-1398 [4th Dept 2015]; Clark v Aquino, 113 A.D.3d 1076, 1076-1078 [4th Dept 2014]; Summers v Spada, 109 A.D.3d 1192, 1192-1193 [4th Dept 2013]).

  4. Mussari v. Murray

    211 A.D.3d 1619 (N.Y. App. Div. 2022)   Cited 2 times

    Plaintiff now appeals. We note at the outset that plaintiff contends on appeal only that he sustained a serious injury under the significant limitation of use and 90/180-day categories of Insurance Law § 5102 (d), and therefore he has abandoned his claim with respect to the permanent consequential limitation of use category alleged in his bill of particulars (seeLamar v. Anastasi , 188 A.D.3d 1637, 1637, 135 N.Y.S.3d 717 [4th Dept. 2020] ; Koneski v. Seppala , 158 A.D.3d 1211, 1212, 70 N.Y.S.3d 625 [4th Dept. 2018] ). For a court "[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented" ( Glick & Dolleck, Inc . v. Tri-Pac Export Corp. , 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968] ; seeMatter of New York City Asbestos Litig. , 33 N.Y.3d 20, 25, 99 N.Y.S.3d 734, 123 N.E.3d 218 [2019] ).

  5. YB v. Carey

    73 Misc. 3d 1224 (N.Y. Civ. Ct. 2021)

    Unaddressed, ignored or overlooked inconsistency in admissible evidence in personal injury matters generally in and of itself, is sufficient to raise material triable issue of fact to defeat motion for summary judgment. Whereas, in Serious Injury motion for summary judgment, unaddressed, ignored, or overlooked inconsistency in the contents of the admissible medical evidence by either party which may have indeed otherwise raised or controverted a mere scintilla of doubt or may be deemed arguable in and of itself, may nevertheless be fatal to offending party's position (seeDevito v Anatra , 189 AD3d 1175,1176, 134 NYS 3d 237, 238 [2d Dept 2020] ; Rosa v Delacruz , 158 AD3d 571, 71 NYS 3d 55 [1st Dept 2018] ; Lamar v Anastasi , 188 AD3d 1637, 1638, 135 NYS 3d 717, 719 [4th Dept 2020] ). It is insufficient to merely remain silent on a material issue of fact within the medical records with the expectation that such silence in and of itself, no matter how thorough on all other medical evidence, will suffice to grant Serious Injury Threshold motion for summary judgment dismissal as a matter of law or, alternatively, in denial for rebuttal opposition's silence.