Diaz v. Nunez

Appellate Division of the Supreme Court of New York

Diaz v. Nunez

5 A.D.3d 302, 774 N.Y.S.2d 500, 2004 N.Y. App. Div. LEXIS 3468

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 25, 2004

StatusPublished

Cited by3 cases

This text of 5 A.D.3d 302 (Diaz v. Nunez) 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

Diaz v. Nunez, 5 A.D.3d 302, 774 N.Y.S.2d 500, 2004 N.Y. App. Div. LEXIS 3468 (N.Y. Ct. App. 2004).

Pincite

Opinion

Order, Supreme Court, Bronx County (Stanley Green, J.), entered February 13, 2003, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

In moving for summary judgment on the ground that plaintiff did not suffer a “serious injury” within the meaning of Insurance Law § 5102 (d), defendants submitted the affirmed report of only one medical expert, a radiologist. The sole basis for the expert’s report was her review of x-rays created at an unknown location on June 18, 2000, a date four months prior to the subject automobile accident. The expert’s report does not set forth the basis, if any, for her understanding that the x-rays she examined depicted plaintiff, nor is there any other evidence in the record to indicate that any x-rays of plaintiff were made in June 2000. Since defendants’ motion papers thus failed to meet [303]*303their burden to establish a prima facie case that plaintiff did not sustain a serious injury, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiffs opposing papers (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Concur—Tom, J.P., Mazzarelli, Sullivan, Ellerin and Friedman, JJ.

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Order, Supreme Court, Bronx County (Stanley Green, J.), entered February 13, 2003, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

In moving for summary judgment on the ground that plaintiff did not suffer a “serious injury” within the meaning of Insurance Law § 5102 (d), defendants submitted the affirmed report of only one medical expert, a radiologist. The sole basis for the expert’s report was her review of x-rays created at an unknown location on June 18, 2000, a date four months prior to the subject automobile accident. The expert’s report does not set forth the basis, if any, for her understanding that the x-rays she examined depicted plaintiff, nor is there any other evidence in the record to indicate that any x-rays of plaintiff were made in June 2000. Since defendants’ motion papers thus failed to meet [303]*303their burden to establish a prima facie case that plaintiff did not sustain a serious injury, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiffs opposing papers (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Concur—Tom, J.P., Mazzarelli, Sullivan, Ellerin and Friedman, JJ.

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Bluebook (online)

5 A.D.3d 302, 774 N.Y.S.2d 500, 2004 N.Y. App. Div. LEXIS 3468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diaz-v-nunez-nyappdiv-2004.

Opinion

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