Herbst v. Marshall
| Decision Date | 14 March 2008 |
| Docket Number | CA 06-03403. |
| Citation | 852 N.Y.S.2d 908,49 A.D.3d 1194,2008 NY Slip Op 02259 |
| Parties | MARY HERBST et al., Appellants-Respondents, v. MARK MARSHALL, Respondent-Appellant. (Action No. 1.) (And Another Action.) (Appeal No. 2.) |
| Court | New York Supreme Court — Appellate Division |
It is hereby ordered that the order so appealed from is unanimously modified on the law by denying in its entirety defendant's motion and reinstating the complaint and as modified the order is affirmed without costs.
Plaintiffs commenced these actions seeking damages for injuries sustained by Mary Herbst (plaintiff) in two separate motor vehicle accidents. Defendant moved for summary judgment dismissing the complaint against him on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the March 2003 accident. Supreme Court granted the motion in part by dismissing the complaint, as amplified by the bill of particulars, with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury. Plaintiffs appeal and defendant cross-appeals from an order that granted the motion of plaintiffs for leave to reargue their opposition to those parts of defendant's motion with respect to the permanent consequential limitation of use and significant limitation of use categories, and upon reargument, adhered to the prior decision. We agree with plaintiffs that the court erred in granting those parts of defendant's motion, and we therefore modify the order accordingly.
Defendant met his initial burden by submitting, inter alia, the report of his examining physician, who stated that there was no objective evidence of a serious injury and that plaintiff sustained only a cervical strain as a result of the March 2003 accident (see Clark v Perry, 21 AD3d 1378, 1379 [2005]). In opposition to the motion, however, plaintiffs submitted the affirmation of a radiologist who stated that plaintiff's MRI indicated the presence of bulging discs that were not degenerative in nature. Plaintiffs also submitted the affirmation of plaintiff's treating physician, who relied on the report of plaintiff's physical therapist, which quantified a...
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Downie v. McDonough
...spine sprain or strain as a result of the accident, which had resolved by the time of the examination ( see Herbst v. Marshall (Appeal No. 2), 49 A.D.3d 1194, 1195, 852 N.Y.S.2d 908). The orthopedic surgeon noted that plaintiff exhibited no palpable spasm, motor deficits, or objective senso......
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...566, 580, 797 N.Y.S.2d 380, 830 N.E.2d 278;see Lux v. Jakson, 52 A.D.3d 1253, 1254, 859 N.Y.S.2d 813;cf. Herbst v. Marshall [Appeal No. 2], 49 A.D.3d 1194, 1195, 852 N.Y.S.2d 908;Coleman v. Wilson, 28 A.D.3d 1198, 1198, 813 N.Y.S.2d 341). Plaintiff failed to meet her burden ( see generally ......
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