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12 A.D.3d 423

Marshall v. Arias

Appellate Division of the Supreme Court of the State of New York · decided 2004-11-08

Cited by 2 later decisions — most recently November 2005

Key passage — most relied on by later courts

“The appellants, as movants for summaiy judgment, bore the burden of establishing their entitlement to judgment as a matter of law (citing Fitzpatrick v. Chase Manhattan Bank, 285 A.D.2d 487 , 728 N.Y.S.2d 484 (2d Dept.2001))); Fitzpatrick v. Chase Manhattan Bank, 285 A.D.2d 487 , 728 N.Y.S.2d 484, 485 (2d Dept.2001) (noting that the Ibarra dictum should not be followed). 14 . Although the doctors do not state their reasons for using the term”

quoted by 1 later decision, including 402 F. Supp. 2d 490 - Solorio v. Asplundh Tree Expert Co.

Good law ✅— No negative treatment on recordhow we know

Decided 2004-11-08

View the full empirical analysis of this case →

¶1In an action to recover damages for personal injuries, the third-party defendants appeal from an order of the Supreme Court, Queens County (Schulman, J), dated November 3, 2003, which denied their motion for summary judgment dismissing the third-party complaint.

¶2Ordered that the order is reversed, on the law, with costs, the motion is granted, and the third-party complaint is dismissed.

¶3In support of their motion for summary judgment on the ground that the plaintiff did not suffer a “grave injury” within the meaning of Workers’ Compensation Law § 11, the appellants relied, inter alia, upon the plaintiff’s verified bill of particulars specifying the nature of his physical injuries, none of which constituted a “grave injury” within the meaning of the statute. In opposition, the defendants third-party plaintiffs submitted no evidence of any additional injuries. The Supreme Court denied the appellants’ motion on the ground that they *424failed to submit competent medical evidence, that the plaintiffs injuries do not rise to the level of grave injuries within the meaning of Workers’ Compensation Law § 11. We reverse.

¶4The appellants, as movants for summary judgment, bore the burden of establishing their entitlement to judgment as a matter of law by submitting evidence in admissible form (see Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487 [2001]), which may include a verified bill of particulars (see Aguirre v Castle Am. Constr., 307 AD2d 901 [2003]; Nasi v Giraudin, 162 AD2d 805 [1990]). Under the circumstances of this case, the plaintiffs verified bill of particulars established, prima facie, the appellants’ entitlement to judgment as a matter of law. In opposition, the respondents failed to raise a triable issue of fact. Ritter, J.P., Goldstein, Adams and Crane, JJ., concur.

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