Appellate Division of the Supreme Court of New York, 2000

Ocasio v. Henry

Appellate Division of the Supreme Court of New York · Decided October 16, 2000

276 A.D.2d 611; 714 N.Y.S.2d 139; 2000 N.Y. App. Div. LEXIS 10413

Cases that cite this one

9 later published cases cite this decision.

Ebewo v. Martinez (District Court, S.D. New York 2004)
Duke v. Saurelis (Appellate Division of the Supreme Court of New York 2007)
Thompson v. Abbasi (Appellate Division of the Supreme Court of New York 2005)
Raugalas v. Chase Manhattan Corp. (Appellate Division of the Supreme Court of New York 2003)
Parkhill v. Cleary (Appellate Division of the Supreme Court of New York 2003)
Kauderer v. New York City Transit Authority (Appellate Division of the Supreme Court of New York 2003)
Chinnici v. Brown (Appellate Division of the Supreme Court of New York 2002)
Peralta v. Carta (Appellate Division of the Supreme Court of New York 2002)
Taylor v. Jerusalem Air, Inc. (Appellate Division of the Supreme Court of New York 2001)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Pagones, J.), dated October 19, 1999, 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) and denied, as academic, their cross motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiffs’ contention, the affirmed medical reports of the physicians who examined them on behalf of the defendants were sufficient to establish a prima facie case that neither plaintiff sustained a serious injury within the meaning *612of Insurance Law § 5102 (d) as a result of the accident. Thus, the burden of proof shifted to the plaintiffs to come forward with sufficient evidence that they each sustained a serious injury (see, Guzman v Michael Mgt., 266 AD2d 508).

The plaintiffs failed to raise a triable issue of fact. The report of the plaintiff Diana Ocasio’s chiropractor submitted in opposition to the motion was not based on a recent examination, did not quantify any limitations of motion, and did not verify any limitation by objective medical findings. As such, the plaintiff Diana Ocasio failed to raise a triable issue of fact (see, Grossman v Wright, 268 AD2d 79; Linares v Mompoint, 273 AD2d 446).

In light of the admission of the plaintiff Andrea Lanzetta that she missed only two weeks of work and school, she failed to raise a triable issue of fact as to whether her alleged injuries prevented her from performing substantially all of the material acts constituting her customary daily activities during at least 90 out of the first 180 days following the accident (see, Hernandez v Cerda, 271 AD2d 569; Lalli v Tamasi, 266 AD2d 266).

The plaintiffs’ remaining contention, that the Supreme Court improperly denied the cross motion, is academic in light of our determination. O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.