Welch v. Penske Truck Leasing Corp.

2 Citing cases

  1. Tulloch v. Hood

    2010 N.Y. Slip Op. 50873 (N.Y. Civ. Ct. 2010)

    These discrepancies also raise an issue of fact as to the plaintiff's claim of injury to his lumbar spine ( Bailey v Singh, 24 Misc 3d 142[A], 2009 NY Slip Op 51726[U] [App Term, 2d 11th Jud Dists 2009]). As the defendant failed to meet their prima facie burden with respect to serious injury as to the plaintiff's lumbar spine, it is not necessary to address the sufficiency of the plaintiff's opposition papers (Spanos v Harrison , 67 AD3d 893; Welch v Penske Truck Leasing Corp. , 29 AD3d 783). However, the defendant did make a prima facie showing that the plaintiff did not sustain a serious injury under the 90/180 day category of the Insurance Law § 5102 ( see Ramjohn v Allstar Limousine Serv., 27 Misc 3d 128[A], 2010 NY Slip Op 50589[U] [App Term, 2d, 11th 13 Jud Dists 2010]; Clermont v City of New York , 27 Misc 3d 130[A], 2010 NY Slip Op 50617[U] [App Term, 2d, 11th 13 Jud Dists 2010]).

  2. MADDEN KHAN v. RIVERO

    2006 N.Y. Slip Op. 52162 (N.Y. Sup. Ct. 2006)

    Moreover, only one of the two examining physicians assigned numerical values to his range of motion findings (see, Browdame v. Candura, 25 AD3d 747), and neither contrasted their respective findings to the established norms. (see, Hernandez v. Stanley, ___ AD3d ___, ___ NYS2d ___, 2006 NY App. Div. LEXIS 13395; Lam v. Spring Scaffolding, Inc., ___ AD3d ___, ___ NYS2d ___, 2006 NY App. Div. LEXIS 13014; Welch v. Penske Truck Leasing Corp., 29 AD3d 783) Significantly, "a defendant who submits admissible proof that a plaintiff has a full range of motion and that he or she suffers from no disabilities has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), despite the existence of an MRI report which shows herniated or bulging discs (citations omitted)."