Lysniak v. Boursiquot, 2006 NY Slip Op 26027 (NY 1/26/2006)

• Citation: 2006 NY Slip Op 26027
• Decision Date: 26 January 2006
• Docket Number: 009112/03.
• Parties: WOLODMYR LYSNIAK ANDLARYSSA LYSNIAK, Plaintiffs, v. ESSEM BOURSIQUOT, Defendants.
• Court: New York Court of Appeals

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2006 NY Slip Op 26027

WOLODMYR LYSNIAK ANDLARYSSA LYSNIAK, Plaintiffs, v. ESSEM BOURSIQUOT, Defendants.

009112/03.

Supreme Court of the State of New York, Nassau County.

Decided January 26, 2006.

JOHN M. GALASSO, J.

This action involves an automobile collision which occurred on October 31, 2001.

Plaintiff, in his mid-70's at the time of the accident, alleged in his bill of particulars that he suffered various physical injuries involving the spine plus serious psychological injuries, including post traumatic stress disorder, depression, anxiety, an inability to concentrate and a phobia of driving.

In support of this motion for summary judgment pursuant to CPLR §3212 and Insurance Law §5102(d), defendant submits the affirmed reports of a neurologist and an orthopedist who concluded there were no objective physical findings the plaintiff sustained any substantial or permanent injuries or disability as a result of the subject accident (see Grossman v. Wright, 268 AD2d 79).

Defendant did not offer any evidence regarding plaintiff's claim of psychological injuries. (See e.g. Bissonette v. Campo, 307 AD2d 673). Nevertheless, the Court finds that defendant presented sufficient proof in admissible form to shift the burden to plaintiff to raise a triable issue of fact in response to this threshold motion (see Elewa v. Enterprise, 4/27/2000 NYLJ 31, (col. 4).

In his opposition, plaintiff does not attempt to contradict defendant's evidence regarding serious physical injuries as a threshold question, thus conceding the issue. Plaintiff addresses only the psychological aspects of his claim. His allegations are not complicated by "zone-of-danger" assertions (Cushing v. Seeman, 247 AD2d 891) or diagnoses of neurological conditions, such as chronic pain syndrome (e.g., Pagels v. P.V.S. Chems., 266 AD2d 819).

On the other hand, plaintiff's expert is not a psychiatrist whose opinion diagnosing post-traumatic stress disorder would raise a material issue of fact constituting a serious injury within the meaning of New York's no-fault law (Wahl v. Lothiam, 235 F. Supp. 2d 334).

Disagreeing with case law to the contrary, the Court determines that findings by a clinical psychologist alone are sufficient to defeat a motion for summary judgment (Ricci v. Deonarine, 9/18/2000 NYLJ, (col. 1); Lacomb v. Poland Central School District, 116 Misc 2d 585; Elewa v. Enterprise, supra).

Defendant's assertion that plaintiff's submissions are inadmissible because plaintif...