RODRIGUEZ v. WHEELS INC

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

Damarys RODRIGUEZ, etc., Respondent, v. WHEELS, INC., et al., Appellants;  et al., Defendants (and a Third-Party Action).

Decided: October 30, 2000

MYRIAM J. ALTMAN, J.P., WILLIAM D. FRIEDMANN, GABRIEL M. KRAUSMAN and NANCY E. SMITH, JJ. Lewis, Johs, Avallone, Aviles & Kaufman, Melville, N.Y. (Dawn C. DeSimone and Michael Kruzynski of counsel), for appellants. Charles Berkman, Brooklyn, N.Y. (Robert J. Tolchin of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants Wheels, Inc., and Lester W. Pearson appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated June 25, 1999, as denied that branch of their motion which was to dismiss the complaint based on the failure of the plaintiff's decedent to appear for a court-ordered physical examination, and (2) from an order of the same court, dated November 19, 1999, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff's decedent did not sustain a serious injury as defined by Insurance Law § 5102(d).

ORDERED that the order dated June 25, 1999, is affirmed;  and is further,

ORDERED that the order dated November 19, 1999, is reversed, on the law, the motion for summary judgment is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed;  and it is further,

ORDERED that one bill of costs is awarded to the appellants.

 Contrary to the appellants' contention, the Supreme Court providently exercised its discretion in denying that branch of their motion which was to dismiss the complaint insofar as asserted against them because the plaintiff's decedent failed to submit to a physical examination before her death (see, McGilvery v. New York City Tr. Auth., 213 A.D.2d 322, 624 N.Y.S.2d 158).

 The Supreme Court, however, improperly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.   The appellants' evidence established a prima facie case that the plaintiff's decedent did not sustain a serious injury as defined by Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition to the motion, the plaintiff failed to come forward with sufficient evidence to raise a triable issue of fact on that issue.   The affirmation of the decedent's treating physician, in which he stated, inter alia, that the decedent suffered a fracture of a nasal bone, was contradicted by that physician's report indicating that the decedent had suffered “[c]ontusions” to her nose, and an X-ray report which noted a “[n]ormal study of the nasal bones” (see, Marino v. Rosen, 166 A.D.2d 693, 694, 561 N.Y.S.2d 280;  see also, David v. Green, 233 A.D.2d 476, 650 N.Y.S.2d 970).   Moreover, the plaintiff failed to submit any competent medical evidence with respect to the decedent's remaining alleged injuries (see, Perovich v. Liotta, 273 A.D.2d 367, 710 N.Y.S.2d 908;  Alcalay v. Town of N. Hempstead, 262 A.D.2d 258, 690 N.Y.S.2d 739;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919;  Merisca v. Alford, 243 A.D.2d 613, 663 N.Y.S.2d 853;  Lincoln v. Johnson, 225 A.D.2d 593, 639 N.Y.S.2d 124).

MEMORANDUM BY THE COURT.

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