CAR ACCIDENT VICTIM BEATS SUMMARY JUDGMENT MOTION; (AGAIN) NO CLUE WHY

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Khaimov v. Jing Fan

Date: Sept. 20, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens accident lawyer)

Comment: For the second day in a row I blog about a No-Fault threshold "serious injury" summary judgment motion by defense in an automobile or car accident case, where the defense loses on appeal. My blog from yesterday is almost identical.

In this case, like yesterday's case, the holds that plaintiff showed the possible existence of a cervical spine (neck) injury and also adequately explained a "gap" in his medical care. Not a clue from the case as to what the plaintiff's affidavit says or how he established his injury medically.

Another case that's useless for those of us who seek guidance from our appeals courts.

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RELATED POSTS:

SUMMARY JUDGMENT TO DEFENSE ON NO-FAULT "SERIOUS INJURY" THRESHOLD MOTION; CAR ACCIDENT VICTIM HAD KNEE SURGERY 4 MONTHS POST-ACCIDENT (Posted by Queens accident lawyer Gary E. Rosenberg on Oct 7, 2011)

DEFENSE LOSES NO-FAULT SERIOUS INJURY THRESHOLD SUMMARY JUDGMENT MOTION WHERE ITS EXAMINING DOCTOR DIDN'T MEASURE ACCIDENT VICTIM'S (Posted by Queens accident lawyer Gary Rosenberg on Jul 30, 2010)

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In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lane, J.), dated June 14, 2010, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) is denied.

The defendant met his prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The plaintiff alleged, inter alia, that the cervical region of his spine sustained certain injuries as a result of the subject accident. The defendant provided, inter alia, competent medical evidence establishing, prima facie, that those alleged injuries did not constitute a serious injury within the meaning of Insurance Law Sec. 5102(d) (see Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275).

However, in opposition, the plaintiff provided competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical region of his spine constituted a serious injury within the meaning of Insurance Law Sec. 5102(d) (see Dixon v. Fuller, 79 A.D.3d 1094, 1094-1095, 913 N.Y.S.2d 776). He also provided a reasonable explanation for a cessation of his medical treatment (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278; Abdelaziz v. Fazel, 78 A.D.3d 1086, 912 N.Y.S.2d 103). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.

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