In this action, plaintiff seeks to recover damages from defendants for personal injury arising from a “slip-and-fall” type accident, occurring on October 26, 2002. Plaintiff alleges that she was a passenger on a bus, and that as she was attempting to exit the bus, she was caused to fall due to an unsafe, wet, and slippery condition that existed upon the floor of the bus.
Defendants’ motion for summary judgment on the basis of liability was denied as defendants have failed to show that there is no substantial issue of fact in this case and therefore nothing to try. The trial court opined that summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue.
Under the “no-fault” law, in order to maintain an action for personal injury, a plaintiff must establish that a “serious injury” has been sustained. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. In the present action, the burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a “serious injury.” When a defendant’s motion is sufficient to raise the issue of whether a “serious injury” has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury.
In support of a claim that plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant’s examining physician or the unsworn reports of plaintiff’s examining physician. Once the burden shifts, it is incumbent upon plaintiff, in opposition to defendant’s motion, to submit proof of serious injury in “admissible form”. Unsworn reports of plaintiff’s examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment. Thus, a medical affirmation or affidavit which is based on a physician’s personal examination and observations of plaintiff is an acceptable method to provide a doctor’s opinion regarding the existence and extent of a plaintiff’s serious injury. However, in order to be sufficient to establish a prima facie case of serious physical injury the affirmation or affidavit must contain medical findings, which are based on the physician’s own examination, tests and observations and review of the record rather than manifesting only the plaintiff’s subjective complaints.
In any event, the findings, which must be submitted in a competent statement under oath (or affirmation, when permitted) must demonstrate that plaintiff sustained at least one of the categories of “serious injury” as enumerated in Insurance Law.
The affirmed report of defendants’ independent examining orthopedic surgeon, indicates that an examination conducted on April 7, 2006 revealed that there are no objective findings to confirm any disability or permanency. He opined that plaintiff can perform all activities of daily living, including employment.
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