Jones v. Budhwa

Appellate Division of the Supreme Court of New York

Jones v. Budhwa

23 A.D.3d 154, 803 N.Y.S.2d 511

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

DecidedNovember 1, 2005

StatusPublished

Cited by1 cases

This text of 23 A.D.3d 154 (Jones v. Budhwa) 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

Jones v. Budhwa, 23 A.D.3d 154, 803 N.Y.S.2d 511 (N.Y. Ct. App. 2005).

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Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered November 22, 2004, which granted plaintiffs motion for reargument, and, upon reargument, denied defendants’ motion for summary judgment, unanimously affirmed, without costs.

Reargument was properly granted where the court acknowledged that it had misapprehended the medical documentation plaintiff submitted in opposition to the motion for summary judgment by defendants (CPLR 2221 [d] [2]).

Upon reargument, the court properly denied summary judgment dismissal of the complaint. The evaluation by plaintiffs treating physician was based on his own examination and objective medical evidence, including an MRI (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]), and concluded that the injuries were both related to the accident and permanent. This evidence raises triable issues of fact as to whether plaintiff sustained “serious injury” within the meaning, of Insurance Law § 5102 (d). There is sufficient explanation in the record for the alleged gap of 17 months between the discontinuance of plaintiffs treatment and his February 2004 examination (see Pommells v Perez, 4 NY3d 566, 577 [2005]; Brown v Achy, 9 [155]*155AD3d 30, 33-34 [2004]). Concur—Buckley, P.J., Tom, Mazzarelli, Marlow and Catterson, JJ.

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Order, Supreme Court, New York County (Milton A. Tingling, J.), entered November 22, 2004, which granted plaintiffs motion for reargument, and, upon reargument, denied defendants’ motion for summary judgment, unanimously affirmed, without costs.

Reargument was properly granted where the court acknowledged that it had misapprehended the medical documentation plaintiff submitted in opposition to the motion for summary judgment by defendants (CPLR 2221 [d] [2]).

Upon reargument, the court properly denied summary judgment dismissal of the complaint. The evaluation by plaintiffs treating physician was based on his own examination and objective medical evidence, including an MRI (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]), and concluded that the injuries were both related to the accident and permanent. This evidence raises triable issues of fact as to whether plaintiff sustained “serious injury” within the meaning, of Insurance Law § 5102 (d). There is sufficient explanation in the record for the alleged gap of 17 months between the discontinuance of plaintiffs treatment and his February 2004 examination (see Pommells v Perez, 4 NY3d 566, 577 [2005]; Brown v Achy, 9 [155]*155AD3d 30, 33-34 [2004]). Concur—Buckley, P.J., Tom, Mazzarelli, Marlow and Catterson, JJ.

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Bluebook (online)

23 A.D.3d 154, 803 N.Y.S.2d 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-budhwa-nyappdiv-2005.

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