Nix v. Yang Gao Xiang

19 A.D.3d 227, 798 N.Y.S.2d 5, 2005 N.Y. App. Div. LEXIS 6786

Opinion

Order, Supreme Court, Bronx County (Betty Owen Stinson, J-), entered May 27, 2004, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

In this personal injury action that resulted from an automobile-pedestrian accident, the IAS court erred when it granted defendant’s summary judgment motion premised on the absence of a “serious injury” as defined by Insurance Law § 5102 (d), since he did not meet his burden of presenting competent evidence that plaintiff had not sustained a serious injury (see Chatah v Iglesias, 5 AD3d 160 [2004]; Rodriguez v Goldstein, 182 AD2d 396 [1992]). The examining neurologist’s report was conclusory, failed to indicate what, if any, objective tests were relied upon, and failed to address the objective findings of plaintiffs MRI and CT scan, which showed disc herniations and bulges. Defendant’s radiologist failed to consider the CT scan and only partially addressed the MRI. Since defendant failed to submit proof in admissible form to meet his burden of establishing a prima facie entitlement to summary judgment, the IAS court should have denied the motion without considering the sufficiency of plaintiff’s opposing papers (see Diaz v Nunez, 5 AD3d 302 [2004]). Concur—Buckley, P.J., Mazzarelli, Friedman, Marlow and Ellerin, JJ.