Order, Supreme Court, New York County (Paul Wooten, J.), entered March 9, 2009, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the claims that infant plaintiff sustained a permanent loss of use of a body organ, member, function or system, a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Andrias, Moskowitz, Renwick, Richter, JJ.
Defendants did not meet their burden of establishing prima facie that infant plaintiff did not sustain permanent loss or permanent consequential or significant limitations as a result of being struck by defendants' vehicle as he was crossing the street. Both the infant and his mother testified at their depositions on May 29, 2007, and reported to defendants' examining physician, that the child began having headaches three weeks after the accident for which his doctors prescribed 400 milligrams of ibuprofen, and that the headaches continued, particularly in the summertime. Thereafter, defendants referred the infant plaintiff to an orthopedic surgeon and a doctor specializing in plastic and reconstructive surgery for examination. Defendants submitted the doctors' letters opining that the infant had no disabilities from an orthopedic point of view or from the scarring on his forehead. However, defendants failed to submit an opinion from a neurologist who could have opined whether the infant's headaches and other symptoms were causally related to the accident.
It is thus irrelevant whether plaintiffs presented sufficient evidence in opposition.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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