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Pamela Mercado v. Prescott Cab Corp. and Khaled Bensenouci

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


April 4, 2012

PAMELA MERCADO,
RESPONDENT, --
v.
PRESCOTT CAB CORP. AND KHALED BENSENOUCI,
APPELLANTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered January 3, 2011.

Mercado v Prescott Cab Corp.

Decided on April 4, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The order denied defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendants' motion for summary judgment dismissing the complaint is granted.

In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, defendants appeal from an order of the Civil Court which denied their motion for summary judgment dismissing the complaint.

Defendants met their prima facie burden of showing that plaintiff did not sustain a serious injury within the meaning 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. The magnetic resonance imaging reports and the medical report by the doctor who had treated plaintiff shortly after the accident were not affirmed and, thus, not in proper form (see Kreimerman v Stunis, 74 AD3d 753 [2010]; Vasquez v John Doe #1, 73 AD3d 1033 [2010]). Plaintiff's submissions were insufficient to establish that her injuries were caused by the subject accident (see Perl v Meher, 18 NY3d 208, 218 [2011]). Furthermore, plaintiff's doctor, who had performed a recent examination, indicated that straight leg raise testing was positive at 40 degrees on the left side and 55 degrees on the right side, but failed to compare her findings to what is normal (see Shirman v Lawal, 69 AD3d 838 [2010]). Consequently, plaintiff failed to raise a triable issue of fact.

Accordingly, the order is reversed and defendants' motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Aliotta, JJ., concur. Decision Date: April 04, 2012

20120404

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