Opinion
2012-07-25
Michael INDIA, appellant, v. Eugene O'CONNOR, et al., respondents.
Steven Cohn, P.C., Carle Place, N.Y. (Mitchell R. Goldklang of counsel), for appellant. Martyn, Toher & Martyn (Bello & Larkin, Hauppauge, N.Y. [John C. Meszaros], of counsel), for respondents.
Steven Cohn, P.C., Carle Place, N.Y. (Mitchell R. Goldklang of counsel), for appellant. Martyn, Toher & Martyn (Bello & Larkin, Hauppauge, N.Y. [John C. Meszaros], of counsel), for respondents.
REINALDO E. RIVERA, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Mayer, J.), dated August 23, 2011, which granted the defendants' 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).
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
Contrary to the Supreme Court's determination, the defendants failed to meet their prima facie burden of showing 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The defendants contended, inter alia, that the alleged injuries to the lumbar region of the plaintiff's spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d). However, the defendants' examining orthopedic surgeon recounted, in an affirmed report submitted in support of the defendants' motion for summary judgment dismissing the complaint, that range-of-motion testing performed during the examination revealed a significant limitation of motion in the lumbar region of the plaintiff's spine ( see Scott v. Gresio, 90 A.D.3d 736, 737, 934 N.Y.S.2d 351;Nelms v. Khokhar, 12 A.D.3d 426, 427, 784 N.Y.S.2d 572). Further, the defendants' orthopedic surgeon failed to adequately explain and substantiate his belief that the limitation of motion in the lumbar region of the plaintiff's spine was self-imposed ( cf. Perl v. Meher, 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655, 960 N.E.2d 424;Gonzales v. Fiallo, 47 A.D.3d 760, 849 N.Y.S.2d 182).
Since the defendants failed to meet their prima facie burden of demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact ( see Cues v. Tavarone, 85 A.D.3d 846, 846–847, 925 N.Y.S.2d 346).