Nadrich v. Woodcrest Country Club

250 A.D.2d 827, 671 N.Y.S.2d 1017, 1998 N.Y. App. Div. LEXIS 6006

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendants Air City, Inc., and Daisy Shum appeal from an order of the Supreme Court, Nassau County (Levitt, J.), dated May 15, 1997, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the injured plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d).

Ordered that that order is reversed, on the law, with costs, the appellants’ motion is granted, the complaint is dismissed insofar as asserted against them, and the action against the remaining defendant is severed.

The Supreme Court improperly denied the appellants’ motion for summary judgment. The appellants established a prima facie case that the plaintiff Rhoda Nadrich did not sustain a serious injury in the underlying accident (see, Gaddy v Eyler, 79 NY2d 955), thereby shifting the burden to the plaintiffs to demonstrate by admissible evidence that the plaintiff Rhoda Nadrich had sustained such an injury (see, Licari v Elliott, 57 NY2d 230, 235; Lopez v Senatore, 65 NY2d 1017). The plaintiffs failed to meet the burden.

The admissible evidence which was submitted in opposition to the appellants’ motion demonstrated that the plaintiff Rhoda Nadrich had a pre-existing hip condition, but did not establish by admissible medical evidence that any aggravation of that condition was caused by this accident (see, Weaver v Derr, 242 AD2d 823). O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.