KOSCIOLEK v. JIANGUO CHEN

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

Tadeusz KOSCIOLEK, et al., Appellants, v. JIANGUO CHEN, et al., Respondents.

Decided: May 21, 2001

CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN and STEPHEN G. CRANE, JJ. Asher & Associates, P.C., Staten Island, N.Y. (Stacy N. Baden of counsel), for appellants. Jaffe & Nohavicka, New York, N.Y. (Stacy R. Seldin of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Ponterio, J.), dated June 21, 2000, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendants' motion which were to dismiss the complaint insofar as asserted on behalf of the plaintiff Tadeusz Kosciolek to recover damages for personal injuries, and insofar as asserted on behalf of the plaintiff Krystyna Kosciolek to recover damages for loss of services, and substituting therefor a provision denying those branches of the motion;  as so modified, the order is affirmed, without costs or disbursements.

With respect to the plaintiff Tadeusz Kosciolek, the defendants submitted a physician's affirmation quantifying loss of range of motion, and referring to positive results of a Magnetic Resonance Imaging examination.   The defendants' doctor further noted that “there is probable causality between the injuries sustained and the accident reported”.   In view of the foregoing, the defendants failed to establish their entitlement to judgment as a matter of law with respect to that plaintiff's cause of action to recover damages for personal injuries (see, Murphy v. Demas, 277 A.D.2d 208, 716 N.Y.S.2d 672).   However, with respect to the plaintiff Krystyna Kosciolek, the defendants submitted admissible evidence demonstrating their entitlement to judgment as a matter of law, and the plaintiffs failed to come forward with competent evidence to raise an issue of fact (see, Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405;  Gutierrez v. Metropolitan Suburban Bus Auth., 240 A.D.2d 469, 659 N.Y.S.2d 787;  Marshall v. Albano, 182 A.D.2d 614, 582 N.Y.S.2d 220).

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