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CPLR § 3212…cont

The issue to be resolved in this case is whether summary judgment of the case is proper.
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact.

After applying the law to the facts in this case, the Court finds that defendant met her burden to demonstrate an issue of fact which precludes summary judgment. As previously stated, in rendering a decision on a summary judgment motion, the Court is not to resolve issues of fact nor determine matters of credibility. The Court finds that the facts and circumstances surrounding the accident do indeed involve determining the credibility of the parties involved in said accident. The Court holds that the parties’ conflicting versions of the car accident,
specifically whether the wind, turning plaintiff s umbrella inside out, caused plaintiff to go backwards into defendant’s vehicle, raise a triable issue of fact.

Therefore, based upon the foregoing, plaintiff’s motion (Seq. No. 03), pursuant to CPLR § 3212, for an order granting partial summary judgment as to the liability against defendant is hereby denied.

As a result of the subject accident described above, plaintiff claims that she sustained the several injuries. Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a “serious injury” as enumerated in Article 51 of the Insurance Law § 5102(d). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a “serious injury.”

In support of a claim that the plaintiff has not sustained a serious personal injury, the defendant may rely either on the sworn statements of the defendant’s examining physicians or the unsworn reports of the plaintiff’s examining physicians. However, unlike the movant’s proof, unsworn reports of the plaintiff’s examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment.

Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff s injury. A plaintiff’s proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor’s observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports.

Conversely, even where there is ample proof of a plaintiff’s injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.

Based upon this evidence, the Court finds that the defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d). The burden now shifts to plaintiff to come forward with evidence to overcome defendant’s submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained.

To Be Cont…

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