This case involves Ashton Learie versus Aliou Fall. The case is being heard in the Supreme Court of the State of New York located in New York County. Judge Kaplan is hearing the case.
The defendant in the case, Aliou Fall has motioned for a summary judgment to dismiss the complaint made against him on the grounds that the plaintiff did not sustain a “serious injury” as determined by Insurance Law.
At around five in the evening on the 17th of August, the plaintiff, Ashton Learie was riding his bicycle and was hit by a car that was owned and driven by the defendant, Aliou Fall. The collision occurred on Seventh Avenue near the intersection of West 145th Street in New York City, New York.
The plaintiff claims to have suffered from a serious injury as a result of the accident. The injuries were to his right shoulder and his spine.
The defendant has moved for a summary judgment in the case stating the plaintiff has not established a serious injury as a result of the accident as defined by Insurance Law. The defendant states that any recovery should be limited to that provided by a no fault insurance policy.
To support the claim for summary judgment the defendant submits a report from Dr. Michael Katz, who is a board certified orthopedist. Dr. Katz performed a medical examination on the plaintiff as a part of the litigation in this case. The defendant also offers testimony from the plaintiff.
Dr. Katz who reviewed the medical records of the plaintiff before conducting his examination discusses the mobility and flexibility of the plaintiff. He concluded in his report that the orthopedic examination was within normal limits and the plaintiff does not suffer from any type of orthopedic disability that is permanent. He states that the plaintiff has a full and normal range of motion in regard to his shoulder and spine. Dr. Katz does not list any of the objective tests that were conducted during his examination of the plaintiff. The conclusions made by the doctor are solely on his visual observation. The doctor did not examine the MRI film of the plaintiff. In conclusion the doctor states that the plaintiff has resolved lumbar and cervical sprains.
In opposition to the motion for summary judgment the plaintiff submits his affidavit and the affidavit from Dr. Bruce J. Paswell. Dr. Paswell is the chiropractor that started treatment of the plaintiff on the 31st of August, 2005. The plaintiff also submits a report from Dr. Armin Tehrany, a board certified orthopedic surgeon who examined him shortly after the accident occurred and also more recently in February of 2007. All of the submissions that were made by the plaintiff show the detailed injuries he suffered to his shoulder and spine.
An order for summary judgment can only be made if there is no triable evidence provided in the case. After reviewing all of the submitted documents for this particular case the court finds in favor of the plaintiff. There is triable evidence in regard to this case and for this reason the motion for summary judgment to dismiss the complaint against the defendant is denied.
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