Latus v. Ishtarq

• Decision Date: 01 March 2018
• Docket Number: 5886,Index 157638/13
• Citation: 71 N.Y.S.3d 67
• Parties: James LATUS, Plaintiff–Appellant, v. Muhammad ISHTARQ, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 433
71 N.Y.S.3d 67

James LATUS, Plaintiff–Appellant,
v.
Muhammad ISHTARQ, et al., Defendants–Respondents.

5886
Index 157638/13

Supreme Court, Appellate Division, First Department, New York.

ENTERED: MARCH 1, 2018

Bailly and McMillan, LLP, White Plains (John J. Bailly of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for respondents.

Sweeny, J.P., Renwick, Tom, Mazzarelli, Oing, JJ.

159 A.D.3d 433

Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered on or about October 5, 2016, which granted defendants' motion for summary judgment dismissing the complaint based on plaintiff's inability to meet the serious injury threshold of Insurance Law § 5102(d), and denied plaintiff's cross motion for partial summary judgment on the serious injury threshold as untimely, unanimously affirmed, without costs.

Plaintiff alleges that he suffered serious injuries in the area of his left hip, namely tears of his left gluteus medius muscle and anterosuperior acetabular labrum, after being struck by defendants' taxi cab while he was crossing the street.

Defendants met their initial burden by submitting both the affirmed report of an orthopedic surgeon and plaintiff's own hospital and medical records, and deposition testimony. Defendant's orthopedist found full range of motion and normal tests, and opined that plaintiff's injuries had resolved (see Frias v. Son Tien Liu , 107 A.D.3d 589, 967 N.Y.S.2d 382 [1st Dept. 2013] ). Defendants' expert was not required to review plaintiff's medical records before forming her opinion (see Mena v. White City Car & Limo Inc. , 117 A.D.3d 441, 441, 985 N.Y.S.2d 234 [1st Dept. 2014] ). Plaintiff's medical records demonstrated prima facie that plaintiff ceased treatment five months after the accident, after his doctor found that he had full range of motion and that his diagnosed conditions had resolved, and that plaintiff had preexisting conditions that may have contributed to his conditions, including corrected spina bifida and osteoarthritis. Defendants thus...