Opinion
No. 2008-02411.
February 3, 2009.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated February 7, 2008, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Baker, McEvoy, Morrissey Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellants.
Louis F. Simonetti, Jr., Jericho, N.Y., for respondent.
Before: Spolzino, J.P., Santucci, Miller, Dickerson and Eng, JJ.
Ordered that the order is affirmed, with costs.
The defendants failed to meet their prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied upon, inter alia, the affirmed medical report of their examining orthopedic surgeon in which he noted the existence of a significant limitation in the plaintiffs left knee range of motion ( see Hurtte v Budget Roadside Care, 54 AD3d 362; Jenkins v Miled Hacking Corp., 43 AD3d 393; Bentivegna v Stein, 42 AD3d 555; Zamaniyan v Vrabeck, 41 AD3d 472). Under the circumstances, it is unnecessary to consider the sufficiency of the plaintiffs opposition papers ( see Hurtte v Budget Roadside Care, 54 AD3d 362; Coscia v 938 Trading Corp., 283 AD2d 538).