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Doris Santos, et al v. New York City Transit Authority

New York Supreme and/or Appellate Courts Appellate Division, First Department


October 16, 2012

DORIS SANTOS, ET AL.,
PLAINTIFFS-APPELLANTS,
v.
NEW YORK CITY TRANSIT AUTHORITY, ET AL.,
DEFENDANTS-RESPONDENTS.

Santos v New York City Tr. Auth.

Decided on October 16, 2012

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.

Gonzalez, P.J., Sweeny, Acosta, Renwick, Manzanet-Daniels, JJ.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 21, 2011, which granted defendants' motion for summary judgment dismissing the complaint alleging serious injuries under Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion denied.

Defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law. Their orthopedist's unexplained findings of significant limitations in the cervical and lumbar spine (see Yamamoto v Carled Cab Corp., 66 AD3d 603 [1st Dept 2009]) conflict with their findings of an absence of serious injury to the spine (Feaster v Boulabat, 77 AD3d 440, 440-441 [1st Dept 2010]). Defendants also failed to submit objective evidence of the absence of any spinal injuries or abnormalities. Nor did they submit any expert opinion that plaintiff's alleged injuries were not caused by the accident. Because defendants failed to meet their burden, their motion must be denied, regardless of the sufficiency of the opposing papers (see Escotto v Vallejo, 95 AD3d 667, 668 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 16, 2012

CLERK

20121016

© 1992-2012 VersusLaw Inc.



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