NIX v. YANG GAO XIANG

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

Deborah NIX, Plaintiff-Appellant, v. YANG GAO XIANG, Defendant-Respondent.

Decided: June 21, 2005

BUCKLEY, P.J., MAZZARELLI, FRIEDMAN, MARLOW, ELLERIN, JJ. Shayne, Dachs, Stanisci, Corker & Sauer, Mineola (Jonathan A. Dachs of counsel), for appellant. Norman Volk & Associates, P.C., New York (Holly E. Peck of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered May 27, 2004, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

In this personal injury action that resulted from an automobile-pedestrian accident, the IAS court erred when it granted defendant's summary judgment motion premised on the absence of a “serious injury” as defined by Insurance Law § 5102(d), since he did not meet his burden of presenting competent evidence that plaintiff had not sustained a serious injury (see Chatah v. Iglesias, 5 A.D.3d 160, 772 N.Y.S.2d 522 [2004];  Rodriguez v. Goldstein, 182 A.D.2d 396, 582 N.Y.S.2d 395 [1992] ).   The examining neurologist's report was conclusory, failed to indicate what, if any, objective tests were relied upon, and failed to address the objective findings of plaintiff's MRI and CT scan, which showed disc herniations and bulges.   Defendant's radiologist failed to consider the CT scan and only partially addressed the MRI. Since defendant failed to submit proof in admissible form to meet his burden of establishing a prima facie entitlement to summary judgment, the IAS court should have denied the motion without considering the sufficiency of plaintiff's opposing papers (see Diaz v. Nunez, 5 A.D.3d 302, 774 N.Y.S.2d 500 [2004] ).