Opinion
2014-01-8
Juan CHANG, et al., appellants, v. Joseph CARDONE, respondent.
Cannon & Acosta, LLP, Huntington, N.Y. (June Redeker of counsel), for appellants. Patterson & Sciarrino, LLP, Bayside, N.Y. (Jerome D. Patterson of counsel), for respondent.
Cannon & Acosta, LLP, Huntington, N.Y. (June Redeker of counsel), for appellants. Patterson & Sciarrino, LLP, Bayside, N.Y. (Jerome D. Patterson of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Weiss, J.), entered February 14, 2013, which granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Juan Chang on the ground that the plaintiff Juan Chang did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the appeal by the plaintiff Elizabeth Rosado Chang is dismissed, as she is not aggrieved by the order appealed from ( seeCPLR 5511); and it is further,
ORDERED that the order is reversed on the appeal by the plaintiff Juan Chang, on the law, and the defendant's motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Juan Chang is denied; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff Juan Chang.
The defendant failed to meet his prima facie burden of demonstrating that the plaintiff Juan Chang 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, 350, 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 medical reports of the defendant's own examining physicians contained evidence that the plaintiff Juan Chang had a significant range-of-motion limitation in his lumbosacral spine. The defendant further failed to demonstrate, prima facie, that the injuries were not causally related to the subject accident ( see Liautaud v. Joseph, 59 A.D.3d 394, 871 N.Y.S.2d 920). Accordingly, the defendant failed to establish his prima facie entitlement to judgment as a matter of law ( see Gaddy v. Eyler, 79 N.Y.2d at 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176; Tudy v. Sandoval, 97 A.D.3d 739, 739–740, 948 N.Y.S.2d 421; Wedderburn v. Simmons, 95 A.D.3d 1304, 944 N.Y.S.2d 894).
Since the defendant failed to meet his prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact ( see Wedderburn v. Simmons, 95 A.D.3d 1304, 944 N.Y.S.2d 894; Fields v. Hildago, 74 A.D.3d 740, 907 N.Y.S.2d 15).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Juan Chang. SKELOS, J.P., DICKERSON, LOTT and AUSTIN, JJ., concur.