Decker v. Stang

243 A.D.2d 1033, 663 N.Y.S.2d 448, 1997 N.Y. App. Div. LEXIS 10899
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 30, 1997
StatusPublished
Cited by13 cases

This text of 243 A.D.2d 1033 (Decker v. Stang) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Decker v. Stang, 243 A.D.2d 1033, 663 N.Y.S.2d 448, 1997 N.Y. App. Div. LEXIS 10899 (N.Y. Ct. App. 1997).

Opinion

Carpinello, J.

Appeal from an order of the Supreme Court (Connor, J.), entered July 29, 1996 in Columbia County, which denied defendants’ motions for summary judgment dismissing the complaint.

As a result of two motor vehicle accidents occurring within a four-week period, plaintiff Kichon Decker (hereinafter plaintiff), and her husband derivatively, commenced this action against defendants alleging a multitude of permanent injuries, including injuries to plaintiffs neck, shoulder and spine. The first accident occurred on June 14, 1992 when the vehicle in which plaintiff was a passenger collided with the vehicle driven by defendant Victor A. Stang, Jr. Thereafter, on July 12, 1992, defendant was a front-seat passenger in an ambulance owned by defendant Richards Ambulance Service, Inc. and driven by de[1034]*1034fendant Robert C. Ray when it hit a log while traveling down a highway, causing the vehicle to leave the road and jostle plaintiff around the vehicle. As amplified in her bill of particulars, plaintiff claims that she suffers from a permanent loss of use of her upper and lower extremities, spine and cerebral functions, a permanent consequential limitation of her upper and lower extremities and a significant limitation of use of her cerebral functions and spinal body system. She also claims to have sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from substantially performing her usual daily activities for not less than 90 days during the 180 days following each accident. Following joinder of issue, Stang moved, and Ray and Richards cross-moved, for summary judgment dismissing the complaint upon the ground that plaintiff did not sustain a “serious injury” (Insurance Law § 5102 [d]) as a matter of law. Supreme Court denied the motions, prompting this appeal.

The affirmation of Robert Heineman, Jr., the board-certified orthopedic surgeon who performed an examination of plaintiff and reviewed her medical history and X rays, satisfied defendants’ initial evidentiary burdens of presenting evidence in admissible form warranting a finding, as a matter of law, that plaintiff has not sustained a “serious injury” within Insurance Law § 5102 (d). Based upon his review of the medical records and his examination of plaintiff, Heineman concluded that plaintiff had preexisting degenerative arthritis of the cervical and lumbar spine before the accidents and that her present complaints, to the extent that they can be verified objectively,

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Bluebook (online)
243 A.D.2d 1033, 663 N.Y.S.2d 448, 1997 N.Y. App. Div. LEXIS 10899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/decker-v-stang-nyappdiv-1997.