A Kings Spinal Injury Lawyer said that, by notice of motion filed on May 27, 2011, under motion sequence four, defendant moves pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) and plaintiff’s claim is derivative to complainant’s claim. By stipulation of all parties dated September 3, 2009, plaintiffs discontinued the action against defendant. Plaintiffs oppose the motion.
A Kings Car Accident Lawyer said that, on June 11, 2009, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk’s office. By verified answer dated September 4, 2009, defendant joined issue. On April 12, 2011, a note of issue was filed. Plaintiffs’ instant action is to recover damages for personal and derivative injuries sustained as a result of a motor vehicle accident. Plaintiffs have alleged in the complaint and bill of particulars that on December 19, 2006, at approximately 12:00 a.m., defendant negligently drove a vehicle at the intersection of West Street and Warren Street in the County and City of New York and struck the rear of plaintiff’s vehicle causing serious injury to him and derivative injury to his spouse.
A Kings Spinal Cord Injury Lawyer said that, defendant’s motion papers consist of an attorney’s affirmation and nine annexed exhibits, labeled A through I. Exhibit A is an E-Law print out. Exhibit B is a copy of the instant summons and verified complaint. Exhibit C is a copy of defendant’s verified answer dated September 4, 2009. Exhibit D is the party’s stipulation discontinuing the action against defendant. Exhibit E is a copy of plaintiff’s verified bill of particulars dated April 7, 2010. Exhibit F is a copy of the transcript of plaintiff’s deposition conducted on December 16, 2010. Exhibit G is the affirmed medical report of the doctor, pertaining to his orthopedic examination of the complainant on February 9, 2011. Exhibit H, is the radiological report of the doctor, opining on complainants cervical, thoracic and lumbar spine x-rays taken on February 8, 2007. Exhibit I is the affirmed medical report of the doctor. He in which he opined on the complainant’s MRI lumbar spine study conducted on February 23, 2007.
The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts.
A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact.
If you want to file a claim for damages, seek the help of a Kings Car Accident Attorney and Kings Personal Injury Attorney at Stephen Bilkis and Associates.