Evans v. Hahn

• Decision Date: 12 November 1998
• Citation: 680 N.Y.S.2d 734,255 A.D.2d 751
• Parties: 1998 N.Y. Slip Op. 10,089 Timothy J. EVANS et al., Respondents, v. Deborah L. HAHN et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 734

680 N.Y.S.2d 734

1998 N.Y. Slip Op. 10,089

Timothy J. EVANS et al., Respondents, v.Deborah L. HAHN et al., Appellants.

Supreme Court, Appellate Division Third Department.

Nov. 12, 1998.

Fixler & Associates LLP(Robert H. Keyes, of counsel), Carmel, for appellants.

Ryan, Roach & Ryan P.C.(William J. Ryan Jr., of counsel), Kingston, for respondents.

Before MERCURE, J.P., and WHITE, PETERS, SPAIN and GRAFFEO, JJ.

SPAIN, Justice.

Appeal from an order of the Supreme Court(Bradley, J.), entered October 3, 1997 in Ulster County, which denied defendants' motion for summary judgment dismissing the complaint.

In May 1995, plaintiffTimothy J. Evans(hereinafter plaintiff) was involved in an automobile accident when the vehicle he was operating was struck from behind by a vehicle driven by defendantDeborah L. Hahn and owned by defendantSteven F. Hahn.Thereafter plaintiff and his wife commenced this negligence action against defendants.Following joinder of issue, defendants moved for summary judgment dismissing the complaint on the basis that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d).Supreme Court denied the motion and defendants now appeal.

We affirm.As the moving party, defendants initially had the burden of establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)(see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176;Richards v. Toomey, 221 A.D.2d 754, 755, 633 N.Y.S.2d 846).Once defendants have met this burden, plaintiffs must, in order to successfully oppose the motion for summary judgment, set forth " 'competent medical evidence based upon objective medical findings and diagnostic tests to support [their] claim * * * [because] subjective complaints of pain * * * absent other proof [are] insufficient to establish a "serious injury" ' "(Tankersley v. Szesnat, 235 A.D.2d 1010, 1012, 653 N.Y.S.2d 184, quotingEisen v. Walter & Samuels, 215 A.D.2d 149, 150, 626 N.Y.S.2d 109).In our view, defendants have met their burden.However, plaintiffs have successfully overcome defendants' entitlement to summary judgment by bringing forth sufficient proof to raise a genuine issue as to whether plaintiff sustained a serious injury (see, Hawkey v. Jefferson Motors, 245 A.D.2d 785, 786, 665 N.Y.S.2d 766).

In opposition to defendants' motion, plaintiffs submitted an affidavit from David Rosenblum, plaintiff's chiropractor, wherein he stated that plaintiff suffered a serious, permanent and consequential disabling injury to his lumbosacral as a result of the accident.He based his conclusions upon several objective medical tests performed by him which revealed...