Orsenigo v. Burnstein

4 Citing cases

  1. Ciocca v. Park

    21 A.D.3d 671 (N.Y. App. Div. 2005)   Cited 9 times

    While Sutton testified at trial that the precise date of injury could not be determined merely from viewing an MRI or X ray, such diagnostic tools together with the history related by plaintiff led Sutton to opine that plaintiff "incurred . . . an acute large tear of the rotator cuff and biceps tendon secondary to the accident [i]n October." Use of a patient's history in conjunction with objective medical proof can suffice to send a serious injury issue to a jury ( see Orsenigo v. Burnstein, 202 AD2d 561; see also Balanta v. Stanlaine Taxi Corp., 307 AD2d 1017, 1018; Countermine v. Galka, 189 AD2d 1043, 1045-1046). Additionally, Mark Bucksbaum (plaintiffs' retained expert) opined upon cross-examination that the onset of plaintiff's torn rotator cuff was consistent with the date of the car accident and did not predate the accident.

  2. Vignola v. Varrichio

    243 A.D.2d 464 (N.Y. App. Div. 1997)   Cited 169 times
    In Vignola v. Varrichio, 243 AD2d 464 (2nd Dept. 1997), the court granted defendant's motion for summary judgment finding no serious injury when plaintiff's doctor, in opposition, failed to cite to any MRI films confirming a meniscus tear.

    that, although Mr. Vignola had "full abduction" and "full extension" with pain, Mr. Vignola "appeared to lack 10 to 15 degrees of terminal elevation" in his left shoulder, and external rotation was "-10 degrees compared to the other side", and (3) an unsworn report from Mr. Vignola's orthopedist, diagnosing his problem as "[l]eft shoulder impingement; left knee, torn medial meniscus" and recommending left knee arthroscopy based, inter alia, upon a "positive Jobe's test and adduction test" and a "positive Apley grind". As this Court noted in Torres v. Micheletti ( 208 A.D.2d 519, 519-520): "Although it is well settled that a moving defendant may rely upon the unsworn reports of the plaintiff's own physicians in support of a motion for summary judgment ( see, Hochlerin v. Tolins, 186 A.D.2d 538; Pagano v. Kingsbury, 182 A.D.2d 268), the reports relied upon here fail to demonstrate that the plaintiff had not suffered a serious injury ( see, Jackson v United Parcel Serv., 204 A.D.2d 605; Orsenigo v. Burnstein, 202 A.D.2d 561; see also, Brown v. Stark, 205 A.D.2d 725). Accordingly, the evidence submitted in support of the motion was insufficient to establish the defendants' entitlement to judgment as a matter of law ( see, Hochlerin v. Tolins, supra; Pagano v Kingsbury, supra)". The description of Mr. Vignola's injuries contained in the defendants' motion papers, which included a diagnosis based upon objective tests, a recommendation of arthroscopic surgery based upon that diagnosis, and a quantified limitation of motion in Mr. Vignola's left shoulder, raised questions of fact as to whether those injuries constituted "serious injury" within the meaning of Insurance Law ยง 5102 (d) ( see, Stark v. Amadio, 239 A.D.2d 569; Sabella v. McKain, 239 A.D.2d 333; Fogliani v. Salvato, 205 A.D.2d 581; DeAngelo v. Fidel Corp. Servs., 171 A.D.2d 588).

  3. Torres v. Micheletti

    208 A.D.2d 519 (N.Y. App. Div. 1994)   Cited 233 times

    In support of their motion for summary judgment, the defendants relied primarily upon the unsworn reports of the injured plaintiff's treating orthopedist, and the results of a magnetic resonance imaging test performed shortly after the accident, which revealed two herniated discs at C4-5 and C5-6 of the plaintiff's lumbar spine that had allegedly been caused by the motor vehicle accident. Although it is well settled that a moving defendant may rely upon the unsworn reports of the plaintiff's own physicians in support of a motion for summary judgment (see, Hochlerin v Tolins, 186 A.D.2d 538; Pagano v. Kingsbury, 182 A.D.2d 268), the reports relied upon here fail to demonstrate that the plaintiff had not suffered a serious injury (see, Jackson v. United Parcel Serv., 204 A.D.2d 605; Orsenigo v. Burnstein, 202 A.D.2d 561; see also, Brown v. Stark, 205 A.D.2d 725). Accordingly, the evidence submitted in support of the motion was insufficient to establish the defendants' entitlement to judgment as a matter of law (see, Hochlerin v. Tolins, supra; Pagano v Kingsbury, supra). In any event, the plaintiffs sustained their burden of establishing a prima facie case of serious injury through the submission, inter alia, of two affidavits from a chiropractor who examined the injured plaintiff and performed tests which quantified the limitation of her range of motion as a result of her spinal injury (see, Cesar v. Felix, 181 A.D.2d 852; Bates v. Peeples, 171 A.D.2d 635). Sullivan, J.P., Santucci, Joy and Krausman, JJ., concur.

  4. MOZEN v. PAPA

    2010 N.Y. Slip Op. 31463 (N.Y. Sup. Ct. 2010)   Cited 1 times

    Dr. Babiy's records indicate that Plaintiff complains of pain in the neck and upper back, Dr. Babiy describes Plaintiff's range of motion as "decreased and painful in all planes" and diagnoses Plaintiff with whiplash, cervical and thoracic myofascitis and muscle spasm. These records fail to demonstrate that the Plaintiff has not suffered a serious injury ( see Orsenigo v Burnstein, 202 AD2d 561).