Jones v. Hampton

Appellate Division of the Supreme Court of New York

Jones v. Hampton

89 A.D.3d 1065, 933 N.Y.2d 614

Appellate Division of the Supreme Court of the State of New York·Decided November 29, 2011·Published

Opinion

The defendant failed to meet his prima facie burden of showing that the plaintiff did not sustain a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant submitted an affirmed medical report from an examining orthopedic surgeon, who noted the existence of a significant limitation in lumbar flexion (see Karvay v Gueli, 77 AD3d 625, 626 [2010]). Although the examining physician nonetheless concluded that the lumbosacral region of the plaintiffs spine was normal, he failed to adequately explain that conclusion in light of his finding of a significant limitation (cf. Gonzales v Fiallo, 47 AD3d 760 [2008]).

Additionally, although the defendant demonstrated, prima facie, that the plaintiffs alleged injuries were not caused by the accident, in opposition, the plaintiff raised a triable issue of fact in that regard (see Jaramillo v Lobo, 32 AD3d 417, 418 [2006]).

[1066]*1066Accordingly, the defendant’s renewed motion for summary judgment dismissing the complaint should have been denied. Skelos, J.E, Angiolillo, Belen, Lott and Roman, JJ., concur.

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The defendant failed to meet his prima facie burden of showing that the plaintiff did not sustain a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant submitted an affirmed medical report from an examining orthopedic surgeon, who noted the existence of a significant limitation in lumbar flexion (see Karvay v Gueli, 77 AD3d 625, 626 [2010]). Although the examining physician nonetheless concluded that the lumbosacral region of the plaintiffs spine was normal, he failed to adequately explain that conclusion in light of his finding of a significant limitation (cf. Gonzales v Fiallo, 47 AD3d 760 [2008]).

Additionally, although the defendant demonstrated, prima facie, that the plaintiffs alleged injuries were not caused by the accident, in opposition, the plaintiff raised a triable issue of fact in that regard (see Jaramillo v Lobo, 32 AD3d 417, 418 [2006]).

[1066]*1066Accordingly, the defendant’s renewed motion for summary judgment dismissing the complaint should have been denied. Skelos, J.E, Angiolillo, Belen, Lott and Roman, JJ., concur.

Jones v. Hampton, 89 A.D.3d 1065, 933 N.Y.2d 614 (N.Y. Ct. App. 2011).

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Opinion

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