Malary v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Malary v. New York City Transit Authority

232 A.D.2d 380, 648 N.Y.S.2d 319, 1996 N.Y. App. Div. LEXIS 9871

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

DecidedOctober 7, 1996

StatusPublished

Cited by3 cases

This text of 232 A.D.2d 380 (Malary v. New York City Transit Authority) 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

Malary v. New York City Transit Authority, 232 A.D.2d 380, 648 N.Y.S.2d 319, 1996 N.Y. App. Div. LEXIS 9871 (N.Y. Ct. App. 1996).

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Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated June 12, 1995, which granted the separate motions of the defendants New York City Transit Authority and Douglas R. Behr, and the defendants China Farm, Inc., and Soonséng Tan, respectively, for summary judgment dismissing the complaint.

[381]*381Ordered that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the motions are denied, and the complaint is reinstated.

We find that the defendants failed to meet their initial burden of establishing prima facie entitlement to judgment as a matter of law. The unsworn medical reports by the defendants’ examining physicians cannot he considered as they were not in admissible form (see, Pagano v Kingsbury, 182 AD2d 268). In addition, the evidence adduced at the plaintiffs examination before trial does not, by itself, establish the defendants’ prima facie entitlement to judgment. Contrary to the defendants’ contentions, the admissible medical evidence submitted by the plaintiff did not patently demonstrate the lack of merit to the plaintiffs serious injury claim (cf., Grier v Kuhn, 187 AD2d 559; Michaelides v Martone, 186 AD2d 544; Covington v Cinnirella, 146 AD2d 565). Bracken, J. P., Copertino, Joy, Florio and McGinity, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated June 12, 1995, which granted the separate motions of the defendants New York City Transit Authority and Douglas R. Behr, and the defendants China Farm, Inc., and Soonséng Tan, respectively, for summary judgment dismissing the complaint.

[381]*381Ordered that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the motions are denied, and the complaint is reinstated.

We find that the defendants failed to meet their initial burden of establishing prima facie entitlement to judgment as a matter of law. The unsworn medical reports by the defendants’ examining physicians cannot he considered as they were not in admissible form (see, Pagano v Kingsbury, 182 AD2d 268). In addition, the evidence adduced at the plaintiffs examination before trial does not, by itself, establish the defendants’ prima facie entitlement to judgment. Contrary to the defendants’ contentions, the admissible medical evidence submitted by the plaintiff did not patently demonstrate the lack of merit to the plaintiffs serious injury claim (cf., Grier v Kuhn, 187 AD2d 559; Michaelides v Martone, 186 AD2d 544; Covington v Cinnirella, 146 AD2d 565). Bracken, J. P., Copertino, Joy, Florio and McGinity, JJ., concur.

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Bluebook (online)

232 A.D.2d 380, 648 N.Y.S.2d 319, 1996 N.Y. App. Div. LEXIS 9871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malary-v-new-york-city-transit-authority-nyappdiv-1996.

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