Abdalla v Mazl Taxi, Inc., 2010 NY Slip Op 06071 (2d Dept. 2010)
There is nothing wrong with relying on a party’s opponents to help establish your prima facie defense that threshold was not breached or a service lacked medical utility. But, as this case shows, watch what you annex to your motions, lest you wish to lose right out of the gate.
“The defendants, in support of their motion, relied on some of the plaintiff’s own medical reports. One such report was that of the plaintiff’s treating physician, Dr. Joyce Goldenberg, which revealed the existence of a significant limitation in the plaintiff’s right knee flexion (see Guerrero v Bernstein, 57 AD3d 845; Mendola v Demetres, 212 AD2d 515). The other was an operative report of the plaintiff’s treating orthopedic surgeon, Dr. Richard Seldes, which revealed, inter alia, the existence of a tear in the posterior horn of the medial meniscus in the right knee. Since the defendants did not meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact”
Can you say sianara?
