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Touliatos v Pogyo
2004 NY Slip Op 51483(U)
Decided on November 30, 2004
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 30, 2004
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
2004-381 Q C

DIONISIA A. TOULIATOS, Respondent,

against

JORGE POGYO, Appellant.


Appeal by defendant from an order of the Civil Court, Queens County


(J. Golia, J.), entered October 28, 2003, which denied his motion for summary judgment.

Order unanimously reversed without costs and defendant's motion for summary judgment granted.

The affirmed medical report submitted by defendant in support of his motion made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). It stated that plaintiff's injuries were resolved. This shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

Plaintiff unsuccessfully opposed the motion. She failed to submit medical proof contemporaneous with the accident showing any initial limitation of motion of her cervical and lumbar spines.
Decision Date: November 30, 2004