Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Huan Hao Yang, Respondent v. Eunice Y. Kang

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


January 28, 2011

HUAN HAO YANG, RESPONDENT, --
v.
EUNICE Y. KANG, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (In-grid Joseph, J.), entered October 23, 2009.

Huan Hao Yang v Kang

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 28, 2011

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ

The order, insofar as appealed from, denied the branches of defendant's motion for summary judgment seeking to dismiss the complaint on the ground that plaintiff did not meet the threshold requirement of suffering a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d), and implicitly denied the branch of defendant's motion for summary judgment seeking to dismiss the complaint on the ground that plaintiff did not meet the threshold requirement of suffering a serious injury under the permanent loss of use category of Insurance Law § 5102 (d).

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant's motion for summary judgment seeking to dismiss the complaint on the ground that plaintiff did not meet the threshold requirement of suffering a serious injury under the permanent loss of use, permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d) are granted.

Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident. Plaintiff's verified bill of particulars claimed injuries under the permanent loss of use, permanent consequential limitation of use, significant limitation of use and 90/180-day categories of serious injury. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Plaintiff opposed the motion. The Civil Court granted defendant's motion only to the extent of awarding defendant summary judgment as to plaintiff's claim of injuries under the 90/180-day category of serious injury. Defendant appeals from so much of the order as declined to grant her summary judgment with respect to the other claimed categories of serious injury.

Defendant met her prima facie burden of showing that plaintiff did not sustain a serious injury under the permanent loss of use, permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, plaintiff failed to raise a triable issue of fact.

In order to qualify under the permanent loss of use category of serious injury, a plaintiff's permanent loss of use must be total (see Oberly v Bangs Ambulance, 96 NY2d 295 [2001]). Since plaintiff's experts never attested to the fact that plaintiff sustained a total loss of use of any of the body parts purportedly injured in the subject accident, plaintiff failed to establish that he sustained a "permanent loss of use of a body organ, member, function or system" (Insurance Law § 5102 [d]; see Oberly, 96 NY2d at 299; Amato v Fast Repair Inc., 42 AD3d 477 [2007]).

Plaintiff failed to proffer any admissible medical evidence revealing the existence of significant range of motion limitations that were contemporaneous with the subject accident (see Taylor v Flaherty, 65 AD3d 1328 [2009]; Fung v Uddin, 60 AD3d 992 [2009]). Plaintiff's medical submissions pertaining to examinations and treatment rendered shortly after the subject accident were without probative value in opposing defendant's motion because they were unaffirmed and unsworn (see Grasso v Angerami, 79 NY2d 813 [1991]; Maffei v Santiago, 63 AD3d 1011 [2009]; Niles v Lam Pakie Ho, 61 AD3d 657 [2009]). Even if the unaffirmed report of plaintiff's treating physician were to be considered, the physician reported that the physical examination he performed two days after the subject accident revealed full range of motion in plaintiff's cervical spine (see Caraballo v Kim, 63 AD3d 976 [2009]; Leeber v Ward, 55 AD3d 563 [2008]). Moreover, defendant's radiologist had examined an MRI of plaintiff's cervical spine and submitted an affirmation in which he concluded that the injuries indicated on the film were the result of pre-existing degenerative disc disease and unrelated to the subject accident. In opposition to defendant's motion, plaintiff submitted an unaffirmed radiological report, which lacked probative value (see Grasso, 79 NY2d at 814; Maffei, 63 AD3d at 1012; Niles, 61 AD3d at 658), and an affirmed medical report from a physician who had performed a recent evaluation of plaintiff, which failed to address the findings of defendant's examining radiologist. Thus, contrary to the determination of the Civil Court, any conclusions by this physician that plaintiff's injuries were caused by the subject accident were speculative (see Larson v Delgado, 71 AD3d 739 [2010]; Casimir v Bailey, 70 AD3d 994 [2010]; Reefer v Adom Rental Transp., Inc., 68 AD3d 1086 [2009]; Mensah v Badu, 68 AD3d 945 [2009]). In the absence of competent medical evidence, the affidavit of plaintiff was insufficient to raise a triable issue of fact (see Luna v Mann, 58 AD3d 699 [2009]).

Accordingly, the branches of defendant's motion for summary judgment dismissing plaintiff's claim of injuries under the permanent loss of use, permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102 (d) should have been granted.

Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: January 28, 2011

20110128

© 1992-2012 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.