Myers v. Davis

32 A.D.3d 731, 821 N.Y.S.2d 181

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 2006
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered January 10, 2005, which, insofar as appealed from as limited by the briefs, denied the motion by plaintiffs Javon and Jaquelynn Cowan, pursuant to CPLR 2221 (e) for renewal of defendants’ previously granted motion for summary judgment dismissing the complaint of said plaintiffs on the ground that Javon Cowan failed to establish that he sustained serious injury within the meaning of Insurance Law § 5102 (d), unanimously reversed, on the law, without costs, the motion for renewal granted, and, upon renewal, defendants’ motion for summary judgment denied, the complaint reinstated as to the Cowan plaintiffs, and the matter remanded for further proceedings. Appeal from order, same court and Justice, entered July 27, 2004, unanimously dismissed, without costs, as superseded by the appeal from the order entered January 10, 2005.

Given the uncontradicted affirmation of Dr. Goldman and his administrative assistant that his failure to state in his original report, dated February 16, 2004, that Javon Cowan’s back injuries were causally related to the November 23, 2001 automobile accident was the result of a transcription error, it was improvident to deny plaintiffs’ motion for renewal. Upon renewal, Dr. Goldman’s affirmation, as corrected, which was based upon his physical examination of plaintiff and a review of his medical records, as well as a recitation of the tests and findings upon which his opinion was based, was sufficient to defeat defendants’ summary judgment motion. Concur — Tom, J.P., Andrias, Friedman, Sullivan and Malone, JJ.