Blusiewicz v. Comeau

212 A.D.2d 657, 622 N.Y.S.2d 773, 1995 N.Y. App. Div. LEXIS 1719

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Becker, J.), dated September 30, 1993, which granted the defendants’ cross motion for summary judgment dismissing the complaint and denied, as academic, the plaintiffs’ motion for leave to file a note of issue, or, in the alternative, to sever the third-party action.

Ordered that the order is reversed, on the law, with costs, the defendants’ cross motion is denied, and the matter is remitted to the Supreme Court, Nassau County, for consideration of the plaintiffs’ motion.

We find that the defendants failed to meet their initial burden, as the movants for summary judgment, of establishing, prima facie, entitlement to judgment as a matter of law. They failed to submit sufficient evidence that the injured plaintiff had not suffered a "serious injury” within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956-957; Craft v Brantuk, 195 AD2d 438). The defendants submitted a sworn report of their own examining physician who found that the injured plaintiff has limitations of movement, in varying degrees, in his spine and hip. These quantified limitations were sufficient to satisfy the "serious injury” requirement of Insurance Law § 5102 (d). The subsequent and contradictory sworn affirmation of the same physician served only to underscore the defendants’ failure of proof.

In light of our determination, we remit the matter to the Supreme Court, Nassau County, for consideration of the plaintiffs’ motion. Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.