Remekie v Atileh (2005 NY Slip Op 50191(U))

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Remekie v Atileh

2005 NY Slip Op 50191(U)

Decided on February 17, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 17, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-691 K C

Ivanone Remekie, Respondent,

against

Haytham Atileh, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (J. Battaglia, J.), entered April 5, 2004, which denied his motion for summary judgment.

Order unanimously affirmed without costs.

Defendant moved for summary judgment on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d).

Defendant's doctors failed to set forth the objective tests supporting the claim that there was no limitation of motion of plaintiff's lumbar spine (Taylor v Ellis, 5 AD3d
471 [2004]; Black v Robinson, 305 AD2d 438 [2003]; Roca v Delgado, 4 Misc 3d 126[A], 2004 NY Slip Op 50609[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant's motion failed to shift the burden to plaintiff, the sufficiency of plaintiff's opposition papers need not be considered (Aronov v Leybovich, 3 AD3d 511 [2004]).
Decision Date: February 17, 2005