Summary
In Henry v. Harker, 61 Or. 276, 290, 118 P. 205, 122 P. 298, while holding that construction of a contract is generally a matter of law for the court "if the language itself is not clear and it can be shown that both parties placed a particular interpretation upon it and acted upon that interpretation, evidence showing such interpretation may be admitted."
Summary of this case from Bakkensen v. Hancock M. Life Ins. Co.Opinion
2003-1040 KC.
Decided July 7, 2004.
Appeal by plaintiff from an order of the Civil Court, Kings County (B. Bayne, J.), entered April 3, 2003, which granted defendants' motion for summary judgment.
Order unanimously reversed without costs and defendants' motion for summary judgment denied.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
The affirmed medical reports submitted by defendants in support of their motion for summary judgment made out a prima facie case that the plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The two reports stated that there were no objective findings of serious injury to plaintiff's cervical or lumbar spines. This shifted the burden to the plaintiff to raise a triable issue of fact ( see Gaddy v. Eyler, 79 NY2d 955).
The plaintiff successfully opposed the motion by presenting evidence that he suffered a serious injury. He submitted an affirmation from his treating physician who described plaintiff's numeric limitation of cervical and lumbar range of motion contemporaneous with the accident, as well as more than three years later, and the tests performed ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350). The physician further indicated that the injuries were causally related to the subject accident. Accordingly, defendants' motion for summary judgment should have been denied.