Lee v. Singh

148 Citing cases

  1. Aguilera v. Lasky-Kuehn

    2020 N.Y. Slip Op. 34881 (N.Y. Sup. Ct. 2020)

    In view of the foregoing, the reports of Dr. Skolnick and Dr. Chacko are insufficient to establish a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law ยง 5102 (d). Inasmuch as defendant failed to meet her prima facie burden, it is unnecessary to consider whether the papers submitted by plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see McMillian v Naparano, 61 A.D.3d 943, 879 N.Y.S.2d 152 [2d Dept 2009]; Yong Deok Lee v Singh, 56 A.D.3d 662, 867 N.Y.S.2d 339 [2d Dept 2008]). Accordingly, the branch of defendant's motion for summary judgment dismissing the complaint on the issue of serious injury is denied.

  2. Flor v. Kiam

    2020 N.Y. Slip Op. 35145 (N.Y. Sup. Ct. 2020)

    The affirmed reports of Dr. Fitzpatrick and Dr. Jacob fail to eliminate triable issues of fact as to whether plaintiff sustained a serious injury to his cervical and lumbar spines and right ankle under either the permanent consequential limitation of use or significant limitations of use categories under Insurance Law ยง 5102 (d) (see Greenidge v United Parcel Serv., Inc., 153 A.D.3d 905, 60 N.Y.S.3d 421 [2d Dept 2017]). Inasmuch as defendant failed to establish prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether plaintiffs opposing papers were sufficient to raise a triable issue of fact (see Cues v Tavarone, 85 A.D.3d 846, 925 N.Y.S.2d 346 [2d Dept 2011]; Reynolds v Wai Sang Leng, 78 A.D.3d 919, 911 N.Y.S.2d 431 [2d Dept 2010]; McMillan v Naparano, 61A.D.3d 943, 879 N.Y.S.2d 152 [2d Dept 2009]; Yong Deok Lee v Singh, 56 A.D.3d 662, 867 N.Y.S.2d 339 [2d Dept 2008]); Krayn v Torella, 40 A.D.3d 588, 833 N.Y.S.2d 406 [2d Dept. 2007]; Walker v Village of Osslning, 18 A.D.3d 867, 796 N.Y.S.2d 658 [2d Dept 2005]). Notwithstanding, even had this Court ruled that defendant's burden had been met, plaintiff presented objective medical evidence sufficient to raise issues of fact to be resolved at trial (see Romano v Persky, 117 A.D.3d 814, 985 N.Y.S.2d 633 [2d Dept 2014]; Kalpakisv County of Nassau, 289 A.D.2d 453, 735 N.Y.S.2d 427 [2d Dept 2001]).

  3. Morgan v. McMahon

    2019 N.Y. Slip Op. 34609 (N.Y. Sup. Ct. 2019)

    In view of the foregoing, Dr. Chernoff's report is insufficient to establish a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law ยง 5102 (d). Inasmuch as defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see McMillian v Naparano, 61 A.D.3d 943, 879 N.Y.S.2d 152 [2d Dept 2009]; Yong Deok Lee v Singh, 56 A.D.3d 662, 867 N.Y.S.2d 339 [2d Dept 2008]). Accordingly, defendants' motion for summary judgment dismissing the complaint on the ground that plaintiffs injuries failed to meet the serious injury threshold of Insurance Law ยง 5102 (d) is denied.

  4. Rexon v. Giles

    2019 N.Y. Slip Op. 34330 (N.Y. Sup. Ct. 2019)

    thus there are triable issues as to whether plaintiff suffered a serious injury (see Greenidge v. United Parcel Serv., Inc., 153 A.D.3d 905, 60 N.Y.S.3d 421 [2d Dept 2017]). Inasmuch as defendant failed to establish prima face entitlement to judgment as a matter of law, it is unnecessary to consider whether plaintiffs opposing papers were sufficient to raise a triable issue of fact (see Cues v Tavarone, 85 A.D.3d 846, 925 N.Y.S.2d 346 [2d Dept 2011]; Reynolds v WaiSangLeng, 78 A.D.3d 919, 911 N.Y.S.2d 431 [2d Dept 2010]; McMillan v. Naparano, 61A.D.3d 943, 879 N.Y.S.2d 152 [2d Dept. 2009]; Yong Deok Lee v. Singh, 56 A.D.3d 662, 867 N.Y.S.2d 339 [2d Dept 2008]); Krayn v. Torella, 40 A.D.3d 588, 833 N.Y.S.2d 406 [2d Dept 2007]; Walker v. Village of Ossining, 18 A.D.3d 867, 796 N.Y.S.2d 658 [2d Dept 2005]). Nevertheless, even if this Court were to find that defendant's burden had been met, plaintiff presented objective medical evidence regarding her limitations in range of motion to her cervical spine sufficient to raise an issue of fact to be resolved at trial (see Romano v. Persky, 117 A.D.3d 814, 985 N.Y.S.2d 633 [2d Dept 2014]; Kalpakis v. County oj Nassau, 289 A.D.2d 453, 735 N.Y.S.2d 427 [2d Dept 2001]). Moreover, the conflicting medical opinions of the respective experts raise issues of fact as well as issues of credibility to be resolved by a jury at trial (see Romano v. Persky, 117A.D.3d 814, 985 N.Y.S.2d 633 [2d Dept 2014]; Ocasio v Zorbas, 14 A.D.3d 499, 789 N.Y.S.2d 166 [2d Dept 2005]; Kalpakis v County of Nas

  5. Lynch v. Hershkowitz

    2019 N.Y. Slip Op. 31375 (N.Y. Sup. Ct. 2019)

    Based upon the above, defendant failed to satisfy the burden of establishing prima facie that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law 5102 [d)](seeAgathe v. Tun Chen Wang, 98 NY2d 345, 746 NYS2d 865 [2006]); see also Reitz v. Seagate Trucking, Inc., 71 AD3d 975, 898 NYS2d 173 [2d Dept. 2010]; Walters v. Papanastassiou, 31 AD3d439, 819 NYS2d 48 [2d Dept 2006]) and thus there are triable issues as to plaintiff suffered a serious injury (see Greenidge v. United Parcel Serv., Inc., 153 AD3d 905, 60 NYS3d 421 [2d Dept 2017]). Inasmuch as defendant failed to establish prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue of fact (see Reynolds v Wai Sang Leng, 78 AD3d 919, 911 NYS2d 431 [2d Dept 2010]; McMillan v. Naparano, 61 AD3d 943, 879 NYS2d 152 [2d Dept. 2009]; Yong Deok Lee v. Singh, 56 AD3d 662, 867 NYS2d 339 [2d Dept 2008]); Krayn v. Torella, 40 AD3d 588, 833 NYS2d 406 [2d Dept 2007]; Walker v. Village of Ossining, 18 AD3d 867, 796 NYS2d 658 [2d Dept 2005]). Nevertheless, even if this Court were to find that defendant's burden had been met, plaintiff presented objective medical evidence regarding plaintiff's limitations in range of motion to his lumbar spine, left shoulder and left knee, sufficient to raise an issue of fact to be resolved at trial (see Romano v. Persky, 117 AD3d 814, 985 NYS2d 633 [2d Dept 2014]; Kalpakis v. County of Nassau, 289 AD2d 453, 735 NYS2d 427 [2d Dept 2001]).

  6. Rivera v. Johnson

    2018 N.Y. Slip Op. 33064 (N.Y. Sup. Ct. 2018)

    Based upon the above, defendant failed to satisfy the burden of establishing prima facie that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law 5102 (d) (see Agathe v. Tun Chen Wang, 98 NY2d 345, 746 NYS2d 865 [2006]); see also Reitz v. Seagate Trucking, Inc., 71 AD3d 975, 898 NYS2d 173 [2d Dept. 2010]; Walters v. Papanastassiou, 31 AD3d 439, 819 NYS2d 48 [2d Dept 2006]) and thus there are triable issues as to whether Rivera injury (see Greenidge v. United Parcel Serv., Inc., 153 AD3d 905, 60 NYS3d 421 [2d Dept 2017]). Inasmuch as defendant failed to establish prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue of fact (see McMillan v. Naparano, 61AD3d 943, 879 NYS2d 152 [2d Dept. 2009]; Yong Deok Lee v. Singh, 56 AD3d 662, 867 NYS2d 339 [2d Dept 2008]); Krayn v. Torella, 40 AD3d 588, 833 NYS2d 406 [2d Dept 2007]; Walker v. Village of Ossining, 18 AD3d 867, 796 NYS2d 658 [2d Dept 2005]). Nevertheless, even if this Court were to find that defendant's burden had been met, plaintiff presented objective medical evidence sufficient to raise an issue of fact to be resolved at trial (see Romano v. Persky, 117 AD3d 814, 985 NYS2d 633 [2d Dept 2014]; Kalpakis v. County of Nassau, 289 AD2d 453, 735 NYS2d 427 [2d Dept 2001]).

  7. Glasgow v. Luise

    2018 N.Y. Slip Op. 34399 (N.Y. Sup. Ct. 2018)

    Inasmuch as Comairco Equipment failed to meet its prima facie burden, it is unnecessary to consider whether the papers submitted by plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see McMillian v Naparano, 61 A.D.3d 943, 879 N.Y.S.2d 152 [2d Dept 2009]; Yong Deok Lee v Singh, 56 A.D.3d 662, 867 N.Y.S.2d 339 [2d Dept 2008]). Thus, Comairco Equipment's motion for summary judgment dismissing the complaint is

  8. Cabrera-Verduzo v. Shortis

    2018 N.Y. Slip Op. 31950 (N.Y. Sup. Ct. 2018)

    The Derle defendants failed to negate the existence of a factual issue as to whether Cabrera-Verduzo's injury prevented her from performing substantially all of her usual and customary daily activities for at least 90 of the first 180 days following the accident. Inasmuch as the Derle defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by Cabrera-Verduzo in opposition to the cross-motion were sufficient to raise a triable issue of fact (see McMillian v Naparano, 61 AD3d 943, 879 NYS2d 152 [2d Dept 20091; Yong Deok Lee v Singh, 56 AD3d 662, 867 NYS2d 339 [2d Dept 2008]). Accordingly, the branch of the Derle defendants' cross-motion for summary judgment dismissing the claim of Cabrera-Verduzo on the issue of serious injury is denied.

  9. Tamburro v. Sunset Airport & Limousine Serv. & David M. Pentecost

    2018 N.Y. Slip Op. 33500 (N.Y. Sup. Ct. 2018)

    The factual issues raised in defendants' moving papers preclude summary judgment as the defendants failed to satisfy the burden of establishing, prima facie, that plaintiff did not sustain a "serious injury", within the meaning of Insurance Law ยง 5102 (d) (see Agathe v Tun Chen Wang, 98 NY2d 345, 746 NYS2d 865 [2006]); see also Walters v Papanastassiou, 31 AD3d 439, 819 NYS2d 48 [2d Dept 2006]). Inasmuch as the moving parties failed to establish prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the opposing papers are sufficient to raise a triable issue of fact (see Yong Deok Lee v Singh, 56 AD3d 662, 867 NYS2d 339 [2d Dept 2008]); Krayn v Torella, 40 AD3d 588, 833 NYS2d 406 [2d Dept 2007]; Walker v Village of Ossining, 18 AD3d 867, 796 NYS2d 658 [2d Dept 2005]), as the burden has not shifted to the plaintiff.

  10. Paulino v. Espinal

    2018 N.Y. Slip Op. 34127 (N.Y. Sup. Ct. 2018)

    Furthermore, plaintiffs have not established that they are entitled to the damages sought in the instant application, inasmuch as plaintiffs failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by defendant in opposition to the motion were sufficient to raise;a. triable issue of fact (see McMillian v Naparano, 61 A.D.3d 943 [2009]; Yong Deok Lee v Singh, 56 A.D.3d 662 [2008]).