BREWSTER v. SKIBA (2005)

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

Robert M. BREWSTER, Plaintiff-Appellant, v. Carolyn E. SKIBA, et al., Defendants-Respondents.

Decided: October 27, 2005

TOM, J.P., MAZZARELLI, FRIEDMAN, CATTERSON, McGUIRE, JJ.

Kevin D. Moloney, Scarsdale, for appellant. James P. Nunemaker, Jr. & Associates, Uniondale (Kathleen E. Fioretti of counsel), for respondents.

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered July 26, 2004, which, insofar as appealed from, denied plaintiff's motion for summary judgment on the issue of whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Even assuming that plaintiff satisfied his initial burden of proving a prima facie case of serious injury, the court did not abuse its discretion in denying the motion on the ground that defendants did not have an opportunity to examine plaintiff by their own physicians (CPLR 3212[f] ).

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